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A DIGESTED INDEX

HOWELL'S EDITION OF THE STATE TRIALS,

BY DAVID JARDINE, Esq.

OF THE MIDDLE TEMPLE, BARRISTER AT LAW.

AN Index to HovveU's Edition of the State Trials has long been a
desideratum : amongst all classes of readers, and particularly amongst
members of the legal profession, it has been a constant subject of regret
that so valuable a repository of historical and constitutional information
should be almost inaccessible, as a book of reference, for want of a con-
venient Index. The publishers, having determined to close the Work
with the Thirty-Third volume, have much satisfaction in being able to
annoimce to the Public, that a digested Index to the whole collection
is now nearly ready for the Press, and will be published early in the
Year 1827, and form the Thirty-Fourth volume of the entire Work.

In making this Compilation, the object has been to furnish the general,
as well as the professional Reader, with an easy instrument of reference
to every thing contained in the collection ; and it has been considered
that the simplest method of arrangement will be best calculated to effect
this object The Index, therefore, merely consists of two Tables, alpha-
betically arranged ; the first being a Table of Names, with a short abstract
under each name of the Contents of the Work, so far as they relate to
the individual to whom the name belongs, and a reference to the passages
in which he is mentioned : the second being a Table of principal matters,
containing references to all the leading subjects, and all the incidental
circumstances, throughout the whole collection. The heads of reference,
in both Tables, have been made as numerous and particular as possible,
with a view to afford a large number of such points as may most probably
occur to the memory of the Reader, and by which he may be guided
directly to the object of his search.

COMPLETE COLLECTION

State Trials

AND

PROCEEDINGS FOR HIGH TREASON AND OTHER

CRIMES AND MISDEMEANORS

FROM THE

EARLIEST PERIOD TO THE YEAR 1783,
WITH NOTES AND OTHER ILLUSTRATIONS:

COMPILED BY

T. B. HOWELL, Esq. F.R.S. F.S.A.

S^ AND

CONTINUED

FROM THE YEAR 1783 TO THE PRESENT TIME:

THOMAS JONES HOWELL, Esq.

VOL. xxxm.

[BEING VOL. XIL OF THE CONTINUATION]
57 GEORGE IIL...A. D. 1817 1 GEORGE IV....A. D. 1820.

LONDON:

LONGBfAN, REES, ORME, BROWN & GREEN; J. M. RICHARDSON; KINGS-
BURY, PARBURY, & ALLEN; BALDWIN, CRADOCK, & JOY; E. JEFFERY
& SON ; J. HATCHARD & SON ; R. H. EVANS ; J. BOOKER ; J. BOOTH ;
A»D BUDD & CALKIN.

1896.

• • *

Lmm OF THE
AUG 21 1900

T. C. HiMirif,
FriBlcr,
PatenuMSer-row Preih

NOTICE.

B Y the present volume^ this Series of State Trials (termi-
nating with the Reign of his late Majesty) is brought to a close ;
nor is there, at the present moment, any intention to continue the
publication of Modem State Trials to a more recent period.
Availing themselves, , therefore, of the opportunity which thus
presents itself, the Publishers have completed their arrangements
for the early appearance of a. Gei^ekal Digested Index,
embracing the contents as well of the First as of the Second
Series.

In selecting from the very numerous cases which fall under
the denomination of State Trials, those which form the Second
Series, care has been taken to reject none the omission of which
would be inconsistent with the genial object of the work. Of
those which have been omitted, some did not appear to be of
su^ffident importance to counterbalance the inconvenience of the
great eMension of the work which their insertion would have
occasioned; and others, in so far as relates to material points,
are f idly reported elsewhere.

TABLE OF CONTENTS

VOLUME XXXIII.

GEORGE THE THIRD, A. D. 1817.

Page
()98. Proceedings in the High court of justiciary at Edinburgh

against ALEXANDER M'LAREN and THOMAS BAIRD,

for Sedition^ a. d. 1817 • • •••• 1

699. Proceedings in the High Court of Justiciary at Edinburgh^ on two

successive Indictments^ raised by his Majesty's Advocate^ against
WILLIAM EDGAR^ for administering unlawful Oaths^ a. d.
1817 145

700. Proceedings in the High Court of Justiciary at Edinburgh^ on two

successive Indictments, raised by his Majesty's Advocate, against
ANDREW M'KINLEY, for administering unlawful Oaths, a. d.
1817 275

Proceedings against JAMES M'EWAN and others at Glasgow ... 629

701. Proceedings in the High Court of Justiciary at Edinburgh, against

NEIL DOUGLAS, Universalist Preacher, for Sedition, a. d.
1817 633

GEORGE THE FOURTH, A. D. 1820.

702. The whole Proceedings on the Trial of ARTHUR THISTLE-
WOOD, for High Treason, a. d. 1820 681

TABLE OF CONTENTS.

703. The whole Proceedings on the Trial of JAMES INGS, for High

Treason, a. d. 1820 ••• «• «.... 957

704. The whole Proceedings on the Trial of JOHN THOMAS BRUNT,

for High Treason, a. d. 1820 1177

705. The whole Proceedings on the Trial of WILLIAM DAVIDSON

and RICHARD TIDD, for High Treason, a.d. 1820 1337

ADDENDA to ihe Case of VALENTINE JONES, Esq., yd. x. of

this Continuation, p. 336 • •• 1567

STATE

I T

STATE TRIALS,

698. Proceedings in the High Court of Justiciary at Edinburgh
against Alexander M'Larek and Thomas Baird, for
Sedition^ March 5th — 7th: 67 George III. a. d. 1817.

flIGti COURT OF JUSTICIARY.

March 5, 1817.

Present,

Hl Hon. Bamd BmfU^ Lord Justice Clf^rk.

Lord Bermani*

IjardGUiies.

lAudPHmiify.

Lord Baton.

Countelfor the Croum*

. Rl Hon. Alejotider MataiuKMe^ Lord Adfo-
- cate [afterwards a l<»d of Session and Justi-
ciary, with the title of Lord Meadowhank.J
Janes Wedderktmj Esq. Solicitor^eneral.
H. H. Dmifwiondy Esq.
J. A, Maeonoekiey Esq.

H, Wmraukry Esq. Agent.

Coiamlfor Alexander M*Lat€n.
Jckn Clerk, Esq.
J. P. Grant, Esq.
James CamjieUy Esq .

Mr. JR. Morion^ Agent.

Counsel for Thomas Baird,

Thmas Jeffery, Esq".
Benry Cockbum, Esq.
X 5. Stewart^ Esq.

Mr. J. Campbell, W, S. Agent.

Xorrf Jftf^ior C2»r&. — Alexander M'laren
and Thomas Baird« attend to the indictment
against you, which the clerk of Court will read.

" Alexander m«laren, now or lately

weafer in Kilmamack, in the county of Ayr,
and Thomas Baird, merchant there, you are
indicted and accused, at the instance of Alex-
ander Maoonodiie of \Meadowhank, his ma-
jesty's' advocate, for his majesty's interest:
thai albeit, by the laws of this and of every
other well-governed realm, Sedition b a crime
of a heinous nature, and seveitly punishable :

VOL. xxxm.

yet true it is and of verity, that you the said
Alexander M'Laren and Thomas Baird are
both and each, or one or other of you, guilty
thereof, actors or actor, or art and part : in $o
far as, you the said Alexander M*Laren did,
at a public meeting, held at Dean-park, in the
vicinitv of Kilmarnock aforesaid, on the 7th
dajT of December 1816, or on one or other of
the days of that month, or of November im-
mediately preceding, or of January immedi-
ately following, which meeting was attended
by a great multitude of persons, chiefly of the
lower orders, wickedly and feloniously deliver
a speech, containing a number of seditious and
in&mmatory remarks and assertions, calculated
to degrade and bring into contempt the go-
vernment and legislature, and to withdraw
therefrom the confidence and affections of the
people, and fill the realm with trouble and dis-
sention ; in which speech there were the fol-
lowing or similar wicked and seditious expres-
sions : — " Tliat our sufferings are insupportable,
is demonstrated to the world ; and that they
are neither temporary, nor occasioned by a
transition * from war to peace,' is palpable to
all, though all have not the courage to avow
it. The fact is, we are nUed by men only so*
ficitous for their own a^randizement ; and
they care no farther for the great body of the
people, than they are subservient to their ac-
cursed purposes. If you are convinced of this,
my countiymen, I would therefore put the
question, are you degenerate enough to bear
it ? ShaJl we, whose forefathers set limits to
the all-grasping power of Rome; shall we,
whose forefathers, at the never to be forgotten
field of Bannockbum, told the mighty Edward,
at the head of the most mighty array ever
trod^ on Britain's soil, ' Hitherto shait thoa
come, and no farther;' shall we, I say, whose
forefathers defied the efforts of foreign tyranny
to enslave our beloved country, meanly permit,
B

57 GEORGE III.

Trial of Alexander McLaren

{ii Our day, wifkettt a murmiir, a base oligaithy
to feed their filthy yermin on our vitals, aud
rule us as they will ? No, my countrymen.
Let us lay our petitions at the foot of the
throne, where sits our August Prince, whose
gtacious nature will incline his ear to listen to
tiie cries of his people, which 1^ is bound to
do by the laws of the country. But, should
he be so infatuated as to turn a deaf ear to-
their just petition, he has forfeited their allegi-
ance. Yes, my^ fellow townsmen, in such a
case, to helL with our allegiance." And you
the said Alexander MLaren did, shortly there-
after, deliver, or cause to be delivered, your
said speech, in manuscript, to Hugh Crawford,
printer in Kilmarnock, to be by him printed and
published. And you the said Thomas Baird
having been present at the said meeting, and
having heard the said speech, and others of a
similar tendency, delivered there, did, shortly
thereafter, and in the course of the said
months of December or January,, wickedly
and feloniously print, or cause or procure to
be printed, at the printing-office of the said
Hugh Crawford, id Kilmarnock aforesaid, a
seditious tract or statement, intituled, " Ac-
count of the proceedings of the public meeting
of the Burgesses and Inhabitants of the town
ofKifinainock, held on the 7lh of December
1816, for the purpose of deliberating on the
most proper method of remedying the present
distresses of the country, with a ftiU report of
the speeches on that occasion ;*' which printed
tract or statement did contain a number of se-
ditious and inflaipmatory remarks and asser-
tions, calculated for the purposes above men-
tioned ; and, in particular, a report of the
said speech of you tne said Alexander M'Laren,
with the passage aforesaid, in the same, or
nearly the same terms ; as also the following
wicked and seditious passages, viz. page ninth,
. — " And a House of Commons — but the latter
is corrupted ; it is decayed and worn out ; it
is not really what it is called, it is not a House
of Commons/' — Page tenth — " The House of
Commons, in its original composition, con-
sisted only of commoners, chosen annually
by the universal suffrage of the people. No
nobleman, no clergyman, no naval or military
officer, in short, none who held places, or re-
ceived pensions from government, had any
right to sit in tliat House. — ^This is what the
House of Commons was, what it ought to be,
.and what we wish it to be ; this is the wanted
change in our form of government — the Com-
mons House of Parliament restored to its ori-
ginal purity ; and this, beyond a doubt, would
strike at the root of the greatest part of the
evils we groan under at the present day."-*-
Page eleventh, " la it any wonder, my friends,
that this country is brought to its jpresent unpre.
bedented state of misery, when the rights of the
people have been thus wantonly violated 1'*-^
^age twelfth, " But let us come nearer home*.
J^ok at the year 1793, when the debt amounted
to two hundred and eleven millions, and the
annual taxation to about eighteen millions ;

when liberty began to rear her drooping head
in the country^ when associations were framed
from one end of the kingdom to another, com-
posed of men eminent for their talents and
virtue, to assert their rights ; when a neigh-
bouring nation had just' thrown off a yoke
which was become intolerable — ^what did the
wise mien of this coavtry do? Why, they
declaved war, not only against the French
nation, but also against the friends of liberty
at home.*' — Page twenty-ninth, " Our oppres-
sors have taxed the very light of heaven ; and
they seem surprised and indignant that we
should not bear the insupportable burden, with
which folly, corruption, and avarice, have
loaded us, without reluetance and eomplatnl?-*
— Page thirty-second, ** Their reverend hire-
lings would convince you that you are suffering
under the visitation of the Almighty, and
therefore ought to be submissive under the
chastenii^ atroke.''"-'Page thirty-fifth, ^ We
have these twenty-five years been condemned
to inceMant and unparalleled slavery, by a
usurped Oligarchy, who pretend to be our
guardians and repvesentatives, while, in fsLCi,
they are nothing but our inflexible and deter-
mined enemies.**—^' They have robbed ns oF
our money, deprived us of our friends, violated
our rights, ana abused our privileges.** — ** At
present we have no representatives ; they are
only nominal, not real ; active only in prose-
cutmg their own designs, and at the same time
telling us that they are agreeable to our wishes.^
— ^And you the said Thomas Baird having ob-
tained a number of copies of the said printed
tract or statement, cootaiDing the said falser
wicked, and sedKioufi nasaages, and othcia of
a similar tMidency, ana being altogether of a
seditious nature, did, in the coerso oi the
said months of December and January, and
of February immediately following, at your
shop in KUmamoek aimsaid, wickedly and
feloniously sell, publish, and circulate, or cause
to be sold, published, or circulated, many of
the said copies thereof, at the price of 'fourpence
each, or other small sum, one of which was
then and there purchased by Hugh Wilson,
weaver in Kilmarnock. And you the said
Alexander McLaren and ThoDM» Baird having
been apprehended and taken before WilUaai
Eaton, esq., sheriff-substitute of the county of
Ayr, did, in his presence, at Kilinamock, on
the 26th- day of Febraary 1817, both and each
of you emit and subscribe a declaration : which
declarations, being to be used in evidence
against each of you respectively, and the
manuscript of nineteen pages, and the half
sh^et of paper, tilled on the back, ** No* 5,*^
both referred to in the said declaration of
you the said Thomas Baird, being to be
used in evidence against you the said Hiomes
Baird, as also three copies of the printed
tract, or- statement, above mentioned, beie^
to be used- in evidence agaipst both and.
each of vou, will be lodged in due time in,
the hands of the clerk of the high court of
justiciary, before which you are to be trieif^

and Th&mas Bairdjbr S^khn,

A. D. 1817.

ttat ywx nay have sn opportunify of Mefn^
the tane. At letst, times and places foresaid
respectively, the said seditious speedi was
wickedly aod feloniously delivered, ooBttibibg
the said or aroilar wicked and seditious ex-
pressions : and the said seditious tract or state-
meat, coDtaioing the said seditious and in*
dammaioiy paasages, and others of a similar
tendency, was wicJkedly and felonioosly printed^
sold, pablished, and circulated, or caused or
procured so to be, as above mentioned : and
you the said Alexander M'Laren and Thomas
Baipd are both and each. Of one or other of
you, guilty thereof, actors or actor, or art and
pait. All which, or part thereof, beins found
proven by the verdict of an assize, beu>re the
lord justice general, the lord justice derk, and
lords commissioners of justiciary, you the said
Alexander M'Laren and Thomas Baird ought
to be punished with the pains of law, to deter
others from committing the like crimes in all
time coming.

" H. Home Dbumkovd, A. D.*'

LIST OF WITKK8SES.

William Eaton, esquire, sheriff-eubstitQte

of Ayrshire.

Thomas Weir, sheriff-clerk-^epate of Ayr^

shine.

3. Alexander Murdochj writer in Ayr.

4. Amirew Fmnie, merchant in Kilmarnock.

5. WUiiam Merrkj wrigbt there.

6. Hugh Crmrfordf printer there.

7. Thomas Murray, journeyman to the said
Hugh Crawford.

6. Jamer JohatsUme, muslin-agent there.
9. David Ramsay Andrews, writer there.

10. Hugh Wibon, weaver there.

11. Jamn Samson, weaver there.

12. David Bow, shopman to Thomas Baird,
merchant in Kilmarnock.

U. HoMx Dbummovd, a. D.

LIST OF ASSIZE. *

CoaMty of Edinburgh.

Jtanes Watson, of Saughton.
Charles Eraser, of Williamston.
Alexander Falconer, baker in Dalkeith.
William Crichion, glazier there. «
WUUam Watson, farmer, Middle-Ksnleith.
John Dodds, fanner, Saughton-mill.
John Drysdale, farmer, Clermiston.

Couttiy of Haddington.

George Remtie, of Fantassie.

Daoid JPringle, of Blegbie.

David Skhrving, farmer at £ast-Garleton.

Peter Sheriff', fanner at Drem.

John Hukp, junior, grocer in Haddington*

County of LinUthgow,

¥atm&n Shmrpy younger of Houston.

Jafei Stewart, of Birniy.

James Gardner, junior, merchant in Bathgate.

JbAit Colder, farmer at Drumcross.

John Buttell, farmer at Mosside.

CUy vf TAMnargh,

WUliam MoriWi^ jeweller, South-brjd'ge-dtrcet^
Edinburgh.

Walter Lamb, upholsterer in Edinburgh.

Archibald M'Kinlay, haberdaiihcr in Edin-
burgh.

John Baxter, confectioner there.

ShatTp Callender, clothier there.

William PiUtison, junior, haberdasher in Edia*
burgh.

Andrew Mellis, haberdasher there.

John Pollock, insurance broker there.

James Hbtc(/ini, jeweller tliere.

John Drtanmona, manufacturer there.

Alexander Andehon, general-agent there.

James Spence, perfumer there.

Peter Brown, hnen-draper there.

William Kennedy, glover there.

James Gilchrist, clothier there.

Charles Howden, shoemaker there.
, Edward XxUchrist, haberdasher there.

James Virtue, Button-manufacturer there.

James Richmond, insurance-broker there.

James Stoddart, wine-merchant there.

Andrew Wauchope, turner there.

Town ofLeith,

James Duncan, ship-owner in Leith.
James Harper, corn-merchant there.
Wm. Uumay, wine-merchant there,
/osaet JSkitmer, cooper there.
John Oowan, wood*4nerchant there.
Charles Murray, wright there.
John SomeruUle, tanner tliere.

Ad. Gillies.

D. MoKTFBNUY.

David DduoLAS^

I/frd Justice Clerk. — Alexander M*Lareti
and Thomas Baird ; What do you say to the
libel ? are you guilty or not guilty ?

Ptfne/i.— Not guilty.

The following Defences had been given in.

Depbvcbs for Alexander M'Laren, Weaver in
Kilmarnock, to the Indictment at the in-
stance of Alexander Maconochie of Mea-
dowbank, his Majesty's Advocate, for his
Majesty^s interest, for Sedition.

^'The panel has been employed horn his
early youth in his trade as a weaver. He has
always preserved the most sober and orderly
habits, and^ if necessary he could bring forward
complete proof of his uniform and steadjT
loyalty. He never was engaged in any riot or
disturbance whatever, and never was connect-
ed, or accused of being connected with any of
the societies, or combinations of men formed
for unlawful purposes, or whose objects have
been regarded with suspicion. He was a vo-
lunteer in the Glasgow Highland regiment
during the whole period of its establishment,
and when the volunteer system was put an end
to, he transferred^ his services to the local
militia. During the greatest part of his service,
he was a serjeant, a situation which he ob-
tained by Ids good conduct.

57 GEORGE III.

Trial ofAktander M'Lareu

Of lale yeaiiytlu^mieliamoBgiiiaDyoUiierty .
lamented the distresses of the ceuotiVy from
which he himself had severely suiTerea in his'
situadbn and prospects. He tiierefore approv-
ed of the petitions, which were presented in
such numhers to his royal highness the Prince
Begenty and the two Houses of parliament, the
object of which was to obtain relief.

** A meeting was held near Kilmarnock in
the month of December last, at which a great
multitude of people attended, for the pnrpose
of considerinff of the expediency of petitioning
his royal highness the Prince Ilegent and the
Houses of Parliament, upon the present dis-
tressed state of the country, and the subject
of parliamentary reform. The panel was pre-
sent at that meeting, and made a short
speech, not in the terms alleged in the libel,
but in other tetms, which appeared to him
to be warranted by law in such a case.
The meeting was afterwards addressed by other
persons; certain resolutions were agreed to;
petitions were drawn out, addressed to the
Frince Regent, and to the two Houses of par-
liament. These petitions having been signed
by a great number of persons, were sent to
Ix)ndon and presented. The petitions ad-
dressed to the two Houses of Parliament were
presented, read, and ordered to lie on the table
of each house. In his speech, the panel did
nothing more than lawfully recommend the
said petitions^: and he denies that he is guilty
of the crime of sedition.

^'The panel took no charge whatever of
printing the pamphlet produced with the libel ;
and he finds that his own speech is inaccurately
reported.

** It is an evident misconception, that such
a speech, spoken at a lawful meeting for lawful
purposes, was calculated to degrade and bring'
into contempt the' government and legisla-
ture, and to withdraw therefrom the confidence
and affections of the people, and fill the realm
with trouble and dissentions. If there are
grievances or abuses, or such men as bad rulers,
or bad ministers, those who complain against
them, or petition against them, do only exer-
cise their legal rights. The panel, while he
was disposed to petition for redress of griev-
ances, was filled with the same reverence for
the legislature and all its different branches,
and for the government of the country as
established by law, that is impressed on the
mind of every good subject.

'* Under protestation to add and eik.

" John Clekk.
** J. P. Grakt.
" James Campbell."

LIST of exculpatory WITNESSES.

Hugh WiUon, weaver, Kilmarnock.
Jumet Samson, ditto, ditto. '

James Johnstofie, muslin -agent there.
John Kennedif, schoolmaster there.
John £/!ac^iMW(^ Vool-spinner there.

Dbfs«cs8 for Thomas Baiid, to'the IndicUnent
at the instance of his Majesty's Advocate
for the Crime of Sedition.

** The panel denies that he is guilty of the
crime diarged against him. He was not a
speaker at the meeting mentioned in the
indictment, and neither spoke mor v^rote any
of the words there set forth. He also denies
that he printed or published any of the said
words; and if any circumstances shall be
proved tending to connect him with the publi*
cation or sale thereof, he has no doubt, both
from the tenor of the said words and the nature
of his concern with them, that it will be
apparent that he is entirely guiltless of the
crime here charged.

*' Under protestation to add and eik.

•* F. Jeffrey.

** H. COCKBURH,

** J. S. Stewart.**

list of exculpatory witnesses.

John Andrews, chief magistrate of Kilmarnock.
DaM Hamsay Andrews, writer there.
WaJUer Andrews, writer there.
Andrew Finnie, merchant there.
James Johnstone, muslin agent there.
John Brown, writer there.
Baiiie William Brown, manufacturer there.
John WilUe, assessor of taxes there.
Bjoberi Howie, merchant there.
Tfiomas Murray, printer there.
The Rev. James Kirkwood, relief minister there,,
residing at Riccarton.

Lord Justice Clerk. — ^Have the counsel Cor
the panels any objections to state to the
relevancy of this indictment ?

Mr. Campbell, — I appear on behalf of the
panel, Alexander M'liiren. It is not my
intention to state any objections to ttie relevancy
of the libel, but to explain to the Court and
Jury the nature of the concern which he had
in the transactions now brought before this
Court. At the same time, it is proper I should
state, that we who are his counsel hold it to be
the undonbted law — and law which has never
been questioned in this part of the country —
that it is the province of the jury to consider
both the facts and the law of the case — that it
is for them to say whether the facts charged in
the indictment are proved in the course of the
trial, and if they find them proved, whether
these facts do amount to the crime charged.
And that being the case, we hold that we are
not deprived of the benefit of any pleas which
we may afterwards maintain, by any interlo-
cutor of relevancy now to be pronounced.

I conceive also, that in justice to the panel
and in justice to the opposite side of the bar,
(who always meet me with liberality, and whom
I wish to meet in the same manner), I should
at once and openly state the nature of the
defence we intend to maintain, and should say
something of the history and character of the
I panel.

and Timtu Bakd/or SeUition.

Tlie paaely after learmng the tnde of m
*«reayer, to the coooty of Perth, went to
Glasgow, where be continued a good many
yean. He acted as assistant foreman in a
■lecrantile bouse, and during the whole of his
-engagement gave entire satisfaction to his
employer. Seventeen years ago he entered
into the Highland corps of yolunteers in tluit
city, and soon rose to the rank of serjeant, and
continued with the corps till it was disbanded,
and the volunteer associations were discon-
tinued. He next went to Kilmarnock, where
a great many weavers are occupied in working
lor the manufacturers of Glasgow ; and« at the
same time, he again gave his services to the
public, by entering into the local militia corps
of that district, in which corps |ie continued
down to 1812, when the period of its service
expired. And not only was there no complaint
against him during all these periods, as a man
either troublesome or quarrelsome, but he
maintained in Kilmarnock, during the period
of nearly eight years during which he lived
there, a character remarkable for sober habits,
attachment to good order, and to the govern-
ment of the country ; and last harvest, during
a riot which occurred about a scarcity of meal,
so far was he from taking any part in the riot,
that when a house was to be attacked, he put
himself forward along with two constables in
order to protect the house. He enjoyed the
same decent, respectable, and good character,
till this charge of sedition was brought against
him.

He does not deny that he attended the
meeting in December. His means of subsist-
ence, and those -of his neighbours about him,
had been graduslUy declining. They had ar-
rived, before the period I speak o% at, 1 hope,
their worst state of distress ; for he worked
fifteen hours a day for 5s. a-week, although he is
not only one of the best workmen, but so expert
as to be able to execute the best work in the
shortest time. And I will prove, that other
workmen who could execute as' good work,
bot who were not so expert and expeditious as
my client, were able to obtain only 3s. a-week.
The panel admits that in this distress he began
to think of the causes which had reduced his
neighbours and himself froin a condition in
which they were prosperous and happy to a
state in which they could scarcely gain the
means of subsistence ; he confesses he came
to be of opinion, tfiat the evils were partly
owing to toe excessive taxation which had
been imposed on the country; and he and
some othera thought it right to call a meeting
of the inhabitants of the place where he resided,
to consider the propriety of a petition to the
legislature on the subject of their distresii^ its
causes, and what appeared to them to be the
proper remedies;

Thev conceived, that to do this was their
nndouDted right ; and it will not be denied on
the opposite side of the bar, that such was
their right. There is no charge in the indict-
ni^t that the meeting was illegal. .It was a

A. D. 1817.

legal neeting which they were entitled to
hold : it was for a legal purpose ; there was no
harm in going there; and every person waa
entitled to state the grievances he felt, and in
a manner that might induce the meeting to
take constitutional measures for what he con-
ceived would bring them relief. Tl^ panel
did not intend to take any part in the proceed-
ings, nor to open the meeting as he did. fiut
those persons who were to have opened the
proceedings, were not equal to the task wbea
the time came, and he was asked to undertake
what was refused by the others. He went into
a house in the neighbourhood, and hastily
threw upon paper some observations which he
wished to submit to the meeting. He did ad-
dress the meeting, but he did not submit to it,
— and there were not contained in that paper—
what are cited as offensive expressions in the
last part of the indictment.

As to tl^e passage about a corrupt adminis-
tration, which is cited in the indictment, it was
in the manuscript, but was not spoken in the
field. I admit that the manuscript afterwards
went into the hands of the committee of the
petitioners, at the request of the committee, in
order to be printed in an account of the pro*
ceediogs, but he had no concern in printing
that account.

With regard to the expressions which are
charged as seditiously directed against the
legislature, we shall satisfy the jury, and shall
show your lordships, ^hat giving them a fair
construction, they contain nothing improper
against any of the orders of the state, against
the King, the House of Lords, or H'ouse of
Commons. In sound construction, the ex-
pressions apply only to the administration for
the time, and every person at such a^ meeting
is entitled, if he thinks it right, to attack the
policy, and conduct of ministers. I need not
enter into the question, whether there has
been roal-administration or not; but every
person feeling himself aggrieved is entitled to
state his grievances, and more particulariy at
a meeting convened for the purpose of apply-
ing to the legislature for redress. This will
not be denied. And what was done in conse-
quence of this meeting, and of the speeches
which were made there? Every thing was
conducted in a regular and orderly manner;,
no injury was done to any property or to any
person ; the only consequence of the meeting
was, that three petitions were resolved on, one
to the Prince Regent, another to the House of
Lords, and the third to the House of Commons ;
which last petition, when presented to that
House, was ordered to be brought up and to
lie on the table. This i* proof that the peti-
tions contained nothing that was offensive to
the Prince Regent, nothing seditious, nothing
offensive to the Houses of rarliament. Every
thing that resulted was legitimate and proper.

Taking the whole circumstances into consi-
deration, it clearly appears, that th# first pas-
sage objected to, relates to the measures of
ministers ; and I will prove even by witnesses

11>

57 GEORGfi III.

Trial rfdUmnitr M*Liiren

112

for tlie cTOwn> th^t, bo fa» was my dtent from
employing any exprieasions disrespectliil to-
wards the head of the govemme&t, that he did
quite the reverse, and ftpoke with the titmost
respect of the Prince Regent.

This being the situation of the maCtefy and
my client having done nothing but what he
was entitled to do, we ^all show that the lan-
guage he used was no other than what he was
completely authorised* to use. In numerous
petitions to parliament, much stronger lao**
guage has been used, and found not only to
be not seditious, but to be not disrespectful to
the House. What was the language held when
Parliamentary Reform was llrst talked of at
the Thatched-house-tavem ? in the second
resolution of that meeting it was said, ** This
meetipg, considering that a general application
by the collective b(^y to the Commons Ilouse
of Parliament cannot be made before the close
of the present session, is of opinion, that the
sense of the people should be taken at such
times as may be con? enient this summer, in
order to lay their ^veral petitions before par-
liament early in the next session, when their
pmposition for a Parliamentaty Reformation,
wUhout ufkick neither the liberty of the natkm <wn
be preserved, n&r the permanence of a wise and
virtuous administration can be secured, may re-
ceive that ample and mature discussion which
so momentous a question demands/' * These
are strong terms, and imply, that, without le^
formation in the representation of the people,
the liberty of the subject is in danger ; and if
there is any doubt as to the meaning of the
passage, look to the letter written by Sfr. Pitt
to Mr. Froet, in which it is said, that Reform
'^ is essentially necessary to the independence
of parliament, and the liberty of the people.'' f
Down to this day strong language is always
used in petitions on that subject and never
objected to, except when the House of Com-
mons is denied to represent the people, or
matter is introduced against the House that is
not relevant to the object of the petition.

It has been laid down by constitutional
lawyers and statesmen, by lord Thurlow, by
Mr. Pitty and Mr. Fox, that where the language
is expressive of the grievance, however strong
it may be, it is justifiable. I therefore submit,
that, as it is competent to put such language
into a petition to parliament — ^as such lan-
guage has not been held objectionable in the
House of Commons, it cannot be considered
as seditious, or as tending to bring the legisla-
ture into contempt. If such language is law-
ful in petitions to parliament, then it must be
held lawful in the speeches and resolutions
made at meetings pi^paratory to such peti-
tions. For there would be an inconsistency
and absurdity in saying, that such language
might be lawfully used in a petition, which if
used in discussing whether it should be in-
serted in the petition would be unlawful. If

> ■ ■ ■ » 1 II I H III ■ .1 W^— —■ I 11 III ,11 .— .PW«— .^W^MMW^— — "

* 1 How. Mod. St. Tr. 493, note.
t 1 How. Mod. St. Tr. 494, note.

it should be neeessary, we shall make out to
the satisfaction of your lordships and the jury,
thatthe language, even as stated in the indid-
ment, does not amount to sedition.
Having stated thus much, I conceive I have

3«ned the nature of the defence we mean to
ead, at sufficient lehgth to make the oppo-
site sHle of the bar aware of the nature of^our.
defence, and I think it unneceisary to detain
your lordships any longer.

Lord Justice Clerk. — ^It is a perfectly fair
and distinct statement.

Mr. Mrey,'^! appear here in behalf of
Thomas JBaird. k suppose we are all agreed,
that it it the right and province of ^the jury to
take into consideration both the facts and the
law of the case; first, to find whether the fiicts
libelled are proved ; and then to judge of the
import of the facts so proved. We have no
desire to quash the trial in any prelimioaiy
stage of the proceedings ; and, notvcithstand*
ing some incorrect stater, ents in the libel, as
we do not wish to shrink f^om investigation,
we shall not trouble your lordships vriUi any
preliminary objections to the relevancy.

I have little farther to state in addition to
the written defences. Mr. Baird is a ^mer-
chant in Kilmarnock, and has always main-
tained, not only an irreproachable but a re-
spectable character in the estimation of both
his superior and equals. He also has served
his country in a military capacity, and held,
successively, commissions in different bodies
of volunteers. In the last corps to which he
vras attached, he served down till ihe dissolu-
tion of the volunteer system in 1813, when the
allowances which had been given to them
were taken «way ; and his conduct, character,
and sentiments, were always considered loyal,
respectable, and praiseworthy.

He also had entertained ideas, the wisdom
and propriety of which cannot here be made a
subject of discussion : But to what he consi-
dered as defects in the constitution, he wished
to apply none but constitutional remedies. A
spectator -of the general distress around him,
and a participator in it, he believed that the
evil was ascribable, at least in part, to a de-
fective representation in the Commons House
of Parliament; and he therefore thought it
proper to present a respectful petition to the
legislature on the subject. He attended the'
public meeting which assembled for that pur-
pose ; but he did not take any part in tlie dis-
cussion, not being gifted with powers of
oratory, nor wishing to obtrude himself on the
public notice. He did however attend the
meeting, and he heard the speeches — which
were not so violent as they have been repre-
sented.

Some expressions were at the time repit)-
bated by him, as tending to throw an odium
on the geneml cause of Reform ; and after-
wards, when it was determined that some
account of the proceedings should be publisbei^,
and the orators gave in t^if tpeeckes to the

131

and Thiuu Bamlfor Sidiliint.

A. D. 1817.

commitee for pablieatioD, he repeated his oik
jectioDs ftgatost printing Mveral passagM which
appeared to him to be improper ; bttC he was
oTemikd by a majority ot the committee, who
wished a full publication of the proceedings.
As the fuoda of the petitioners were low^ it
eocurred to the committee that some small
pittance might be.c<41ected from the publiea-
tion, to defray the expenses necessary for the
pfepaiatioa dT the petitions. In this way, he
oonaemed to the publiealioRy but at the same
time protested against puUisluDg any impropet
ezpccssions ; but not hayiag any idea (as such
a oiscoveiy indeed had not then been made in
any quarter)^ that the expressions, tfaoagfa
censarable^ were of a naittre to infer criminal
Gonseqaeneesy be gare no critical attention to
the minute contents of the publication, nor
considered himself responsible for them. In
Older to forward the end in ?iew, which was
not to excite violence or sedition, but merely
to raise money, it was determined that the
members of Ae committee should distribute
and sell as many copies of the pamphlet as
possible ; and my client agreed to sell some of
^ibem.

Tbese are the facts of the case. As to the
leleTancy, mnch will depend on the interpre*
tation to be- given to the words libelled on.
We do not think it necessary at present to say
any thing farther on that point, as we shaU
prove that the expressions used were materially
aifierent from those lib^ed in the indictment.
When tba tets are disclosed in the evidence,
we shall have a fitter opportunity for remark*
ing on them.

Lord AdvoaUe. — ^It is unnecessary for me to
say any thing as to the candid statement
which has been made on the other side of the
bar. I admit that it is not only the right of
the jury, but that it is their bouaden duty to
hay upon their oaths, whether the natter
charged is sedition or not. In that I concur
with my teamed friends, and therefore I necfd
say ttodiing more.

Lord Juttice Clerk. — ^Your lordships have
heard what has been said on behalf of the pri-
soners, and what has been said by the lord
advocate. I have to ask your lordships, whe-
ther you have any observations to offer on the
relevancy of this indictment.

iiovd Hermand. — ^I am of opinion that the
indictment is relevant ; and I think there can
be little doubt on the point with those who
bear me. The learned gentleman who opened
the defence admitted, that an attack on parlia*
ment oonstitntes sedition; adding, that his
client did not apply his expressions to the
legislature, but to the ministers of the day. It
nay be so, but that is tiot what is stated in
this indictment, to which alone I can attend at
ptesent. Past of the chaige goes veiy deepv
They» iMt on pretence of a dntiful petition.
Sttch pretences ace always made. T^% your
lovdships will attend to what we find stated :
^ Ijdt Of lay onir petitiena at the fwit of &e

throne, where sile o«r august prince, whoso
gracious nature will incline his ear to listen to
the cries of his people, which he is bound to
do by the laws of the country." AH this is
extremely good ; but what follows ? " But,
should he be 80 infatuated as to turn a deaf
ear to their just petition, he has forfeited their
ellegiaace. Yes, ray fellow-townsmen, in such
a case, to h^U toUh ow aUtgUmce/' Is that not
sedition? Accompanied with an overt act,
would it not be high treason ? I have no hesi-
tation in saying it would.

Things may turn out differently on the proof
from what is represented in the indictment ;
and I should n^ice to find it so. But, with
regard to the speech and the publication, aa
here stated, is uiere not a direct attack on tho
legislature ? Another pflMsage is : ''A House
of Commons, but the latter is corrupted ; it i»
decayed and worn out; it is not really what it
is called; it is not a House of Commons.^
We are told this is only an attack on the mi-
nisters. It b an attack on the House itself.
Any petition containing such expressions, I
always understood, would be rejected by the
Houee of Commons. " At present we have
no representatives ; they are only nominal, not
real; actite only in prosecuting their own
designs, and at the same time telling us that
they are agreeable to our wishes.'' Is that not
a broad attack on the legislature T I shsll bo
glad if the facts charged are not made out^
They cleaity amount to sedition as they are
stated.

Lord GiUieSj-^-l concur in the opinion which
I have now heard, so far as to think the indict-
ment relevant. I have no doubt that it ia
relevant, and that the ordinary interlocutor
must be pronounced. The indictment states,
that at a meeting '* attended by a great multi-
tude of persons, chiefly of the lower orders,"
one of tae panels delivered a certain spee<^
which speech was afterwards ciixulated by the
other prisoner. »

As to the nature and objects of the meeting,
no information is given in the indictment ; I
must therefore hold it to have been a lawful
meeting. But the libel goes on to state, that
^ panel " wickedly and feloniously delivered
a speech containing a number of seditious and
inflammatory remarks and assertions, calcu*
lated to degrade and bring into contempt the
government and legislature, and to withdraw
Uierefrom the confidence and affections of the
people, and to fill the realm with trouble and
dissention.'' This is certainly a charge of
sedition ; and, if the expressions cited in the
indictment were delivered for the purpose
there statikl,. they must bo regarded as sedi*>
tiotM. I need deliver no opinion farther at
present, for the facta chaiged in the indict-
ment, an^f stUl more, the wieked and febniou»
intentione therein aseribed- to- them, are denied
by the panels. AJl these matters remain to be
the subject of proof; and I should be arvogiat-
ing to myself the province of the jury and Of

57 GEORGE IIL

Triid ofAlexatukf M*Larnt

[16

your lordship, if I said aaj thing farther at
this period or the trial ; for after the proof only
can any satisiactory opinion be given on the
subject.

Lord PitnttUy,—^Swm after the printed copy
of this indictment "was put into my hands, I
considered it with a view to the question of
relevancy; and although the counsel for the
panels have not disputed the relevancy of the
indictment, but reserved to themselves the
liberty of making such observations as may
appear to them proper after a proof shal) have
been led, it would have been the province and
the duty of this court to stop the trial at this
stage if it had appeared to us that the indict-
ment is not relevantly laid.

ThMefence has been very properly explain-
ed by the counsel for the panels ; and I shall
be happy if they make out that defence, either
in exculpation, or in alleviation of the crime
charged in this indictment. The only question
at present is as to the relevancy of the indict-
ment ; and I have no hesitation in saying, that
in my opinion, it is relevanf ; nnd that, there-
fore, the ordinary interlocutor should be pro-
nounced.

The major proposition of the indictment
charges sedition in general terms. This is an
unexceptionable charge, which has never been
objected to, that I know of, but in one case,
where the question reg^ding it was argued,
and the objection was repelled. I allude to
the case of Sinclair.* It is known to every
lawyer that sedition is a crime recognised by
the laws of this country. It is a crime, in-
deed, the trial and punishment of which must
be coeval with government.

It IS stated that the one panel made a speech
which contains inflammatory remarks and se-
ditious expressions, and that the other panel
circulated a pamphlet containing that and
other seditious speeches. Paragraphs of it
have been read, and I will not consume time
with reading or commenting on any^f them
at present. No person who reads them can
doubt, that the general nature of them is to
excite commotion, and to prepare the way for
resistance and for -overturning the government.
That this is the general tendency of (he facts
charged, no person can doubt. It would also
be wasting the time of the Court to read the
passages of the luminous commentary by Mr.
Hume on the crime of sedition, or to refer to
the authorities and the precedents which have
occurred in this court.

The counsel for the panels are correct in
stating, that it is the province of the jury ulti-
mately to determine, not only as to the facts of
the utterance and the publication of the ex-
pressions mentioned in the libd, but also with
regard to the law, whether the expressions are
to be held seditious or not. On that point

— ... 11 1..I 1 I M I ., I, I I ,1 III II I , I I

* See the debate on the Relevancy of the
Indiotment in Smdair's wse^ 2 Blow, Mod. St.
Tr. 784.

there can be no doubt; atid there never was
doubt as to it at any period of the history of this
court. The Court, however, in considering of
the relevancy, must determine in the first in-
stance whether the expressions complained of
appear to them to be seditions, and to amount
to the crime of sedition ; and on this subject I
cannot entertain the shadow of doubt.

Lord Retton. — I have no dpubt as to the re-
levancy of the indictment. We have nothing
to do at present with the truth of the state*
ments in it. The only question now is, whe-
ther the averments of the public prosecutov
are put in proper shape and terms in this
charge. The jury will decide not only on the
bare fhcts^ but on the legal import of them,
and will say whether the panels are guilty or
not of the crime of sedition.

I have no doubt of the sufficiency of the
averments made by the public prosecutor. He
has averred circumstancesy which, if proved,
amount to sedition. His averments amount to
this, that what was said and published was not
only calculated to produce pernicious conse^
quences affecting the government and legisla-^
ture, but must have been meant for seditious
purposes. The indictment states, that the pur-

r>se of the panels was vricked and felonious;
consider that the speech said to have been
delivered by one of tne panels is seditious in
all its parts, and tends to excite discontent in
the country. It was delivered in the open air,
before a multitude of the lower orders assembled
to hear it. The panel is alleged to have stated
that their sufferings were intolerable, and in
coarse and calumnious language to have said^
** A base oligarchy feed their filthy vermin on
our vitals, and rule us as they will.^' I consider
this expression as tending directly to vilify the
government, and weaken the affections of the
country towards its legislature. In this speech
he talks of successful resistance. He speaks
of the reformation, and of the resistance made
to the English when their progress was stopped
at Bannookbum. What were the feelings
meant to be excited in the audience ? He was
attempting to degrade the government, in
order to stimulate his hearers to resistance ;
and, to give them confidence, he mentioned
former instances of successful resistance. No
doubt he proposes that the petition shall be
laid at the foot of the throne ; and he pays a
compliment to t1|e Prince Regent. But what
does he add ? ** Should he be so infatuated as
to turn a deaf ear to their just petition, he has
forfeited theit allegiance. Yes, my fellow-
townsmen, in such a case, to hell with our
allegiance.** Is there no intimidation — is there
no threat intended by such language ? It is
true the expression ^* just petition*' is employ-
ed ; but who is to judge whether the petition
is just ? Were-4l)09e at the meeting to judge ?
It was in efiect, saying, if our petition is not
listened to, we are alMolved from our alle*
glance. If the expressions shall be proyed^
Uie language is seditious in a high degree. •

171

ttmi T%omag^i^irdfir SkdHwn.

A. D: 1817.

LIS

Lord Justice Clerk, — I entirdy concur in the
Opiiiiong which have been deliyered as to. flie
wofiaee and doty of the jury in a case of thi»
kod. It XI not necessary ror me to state any
tfaioff further at present, than that no douU
can he entertained that this indictment is rele»
TBnt.

Alexander H^ren and Thomas fiaird :
Attend'to'tfae interlocutor of the court as to
the relevancy of this indictmcpl.

VOL. XXXIII. »

But ibis pand is not only accused ef ex-
pressing himself in this seditions manner wfiile
in the beat «f addressing his audience, but he
is also said to hare delivered up Uie MS. of his
speech' in order to be printed. If thisbe proved,
then not only did he use seditious language in
the heat of his address, for which he might
have been in a certain degree exousablCy if
momentarily not master of himself, but he af-
terwards did the utmost in his power to circu*
late this sedition. It was not likely that the
speech would be heard of beyond the place
where it was delivered, witliout some eflbrt
yrete used to disseminate it, but he shewed his
anxiety to obtain for it a wider circulation.

The indictment is clearly relevant as to
M'Laren. It is likewise so as to Baird* He
was present at the meeting. I do not say the
purpose of the meeting was illegal. Baiid be-
came the trumpet of that meeting, and is said
lo have circulated an account of this very
speech, which is charged as having been de-
livered by McLaren. If the public prosecutor
proves his averments, he makes out that a di-
rect attack was made on the legislature, and in
strong terms oa the House of Commons. " No
nobleman— no clergyman — no naval or mili-
tary officer — in short, none who held places,
or received pensions from government, had
any right to sit in that House.*' And again,
** Is it any wonder, my friends, that this coud-
t^is brought to its presentunprecedented state
Of misery, when the rights of the people have
been thus wantonly violated?^' And in ano-
ther place it is said, ** we have these twenty-
five years been condemned to incessant and
unptoalleled slavery, by a usurped oligarchy,
who preteqd to be our guardians and represen-
tatives, while, in £act, they are nothing but our
inflexible and determined aienries." — ** They
have robbed us of our money, deprived us of
&aa friends, violated our rights, and abused
our privileges." — *• At present we have no re-
presentatives ; they are only nominal, not real ;
active only in prosecuting their own designs,
and at the same time telling us that they are
i^greeable to our wishes." If this is not a di-
rect attack on a branch of the legislature, I do
not know what can be an attack on it.

Our present business is only to judge of the
lelevancy of the indictment, and then a jury
w31 judge both of the law and the fiicts of the
case. If they think neither of the panels used
these expressions, or circulated them, or if tlrey
are of opinion that they are not inflammatory
and seditious, it is thenr part, not ours, to find

*^ The Loid Jaetiee Qezfc and lords com-
missioners of justiciary having considered the
crimifMd indictment, raised and pursued at ihe
instance of bis majesty's advocate, for his flKa«
jesty's interest, against Alexander McLaren
and Thomas Baird, panels, th^ find the in-
dictment relevant to iiifer the pains of law ;
but allow the panels, and each of them, to
prow all fecto and eiocamstances that may
tend to exculpate them, or either of them, of
alleviate their guilt, and remit the panels, with
the indictment as fouad relevant, to the know-
ledge of an assize.

« 0. BoTii, I. P. D."

The following persons were then named to
pass upon the assize of the panels.

James Watson^ of Saughton.
John Dodds, farmer at Saughton Mill.
John DrysdaU farmer, Ciermiston.
Daoid Pringle, of Blegbie.
J<^ Stewart, of Binny.
John Colder, farmer at Drumcross.
John Rusielf farmer at Mosside.
William Marshall, jeweller, South Bridge^

Edinburgh.
Archibald JMP^EmZtry, haberdasher in Edinburgh.
John Baxter, confectioner there.
Jamei Hawden, jeweller there.
William Kenne&f, glover there,
WUUam Umdsay, wine-merchant, Leith. .
John Gowan, wood-merchant there.
Jame$ Stoddart, wine-merchant, Edinburgh.

Lord Justice Cktk, — Are the dedaratioiis of
^e prisoners admitted f

lir. Oerk. — ^Yea, my loid.

SVIDEKCX FOR TB£ CaOWIT*

Andrew Tinnie sworn. — Examined by
Mr. Drummand,

You are a merchant in Kilmarnock ?— Yes.

Do you know the Dean Park in the vicinity
.of Kilmarnock ?-^I do.

How far is it firom Kilmarnock ? — ^About half
a mile.

Do you remember that a public meeting
was held at the Dean park on the 7th of Dec«
last?— I do.

Was there a great number of persons at it ?
—'I think about 4,000.

A great number of the lower orders?—
Yes.

Do you remember that speeches were made
at that meeting ?-~ Yes.

Who opene4 the business? — Alexander'
M*Laren. ^

Is that the person there? — It is.

He made a speech ?-^Yes.

What was the speech about, sir 7-^ About
the business that the meeting was called for^*
which was for the purpose of deliberating on
the best mode of petitK>ning for parliamentary
reform.

Do you remember any part of his speech
any of the words that he us^ ?— Tfothing par-
ticular, except one passage near the end. ^

19]

£7 GBORGE III.

7rMf qfAtumndfff M*Larem

[20

Repeat -thd passage as near as you rametDber
it?— «< We wiU lay our petidons at the foot of
the throne (or let us lay^ I do not remember
exactly which), where stts-our august prince,
whose generous - nature will incline his ear to
hear the cries of hi» people, which lie is bound
to d6 by tbe constitutional laws of the country ;
and we * are thereby^ •bound to give him our
allegiance. But if he should be so infetuated
as to turn a deaf ear to the ireneral cries of his
people (or Toiee of his people^ I do not know
which), to hell with allegiance.^

Is that the whole of the passage P — ^The
whdie of the- passage, as fur a» I recollect.

Lord AdoocaU.—! wish to know whether
M'Lareu in his speech stated that a number of
resolutions had been drawn up by the com-
mittee, which were about to be read' f— Yes,
about the close of his speech, after the expres-
sion I alluded to, I think.

Mr. Drummond. — Did he recommend any
body to be called to the chair of the meeting ?
— He said the committee unanimously recom-
mended Mr. Johnstone.

And did he propose him to be elected to the
chair ? — Yes, I understood so^

He was called to the chair ?— He was called-
to the chair.

Did vou see Mr. Johnstbae in the other room
to-dayr— Idid.

Did you ever see a printed account of
M'Laren's speech? — ^Yes.

Was' it in an account of the proceedings of
the meeting ?L— In a^ pamphlet.

Is that the pamphlet?

[The pamphlet wak* handed t^the witnessi]

That is one of them.

The rest are the same ?—I understood so.

Did you read McLaren's speech ? — ^YeS.

Did It appear the same as that delivered at
the meeting ? — No ; there was a difference par-
ticularly as to that passage.

L(trd JvUiee Cterib— You mean the passage
in reference to allegiaoee? — ^Yes, my lord.

l»Tr. Dr&mm(M<f.^~Wnr you point outtaus
particularly what is the difference between that
printed passage and what he said ?^— There is
one part which I think is omitted.

What is that ?r~" And we are thereby bound
t6 give him our allegiance.''

Do you observe any other difference? — I
thinK tnat instead^ of ** to their just petition,*'
he said, ** to the general cries or roice of his
people.*^

Lord JuUk€ Cierk.-^^Jvai petition" are the
words you see there ?'-^Yes, my lord.

Mr! I^rummond, — Any othfer ' difference?—
The words *' he has forfeited that allei^ance,"
were never mentioned that I beard ; and nor-
thing that 1 remember, but ^ to hell with alle-
giance.''

' Mr. Clmrk wisbed:tc^&iiow what the witness
had said*

Mr. Dnmmmd, — Tbe witness did sot hear
the words ** he has forfeited that allegiance.**

WUnen, — That is what I meant to say. ** To
hell with allegiance," is all that I heard at the
meeting.

Had you any charge as to printing tliat pam-
phlet?— I was appointed ta a charge about
thej^rintinv^ but I never acted to it.

Who had die charge along^with you T — ^Mr.
Bairdl

And who else ? — Mr; Walter Andrew.

A Writer?— Yes.

You took no charge though you were ap-
pointed to superintend the printing ? — I was
appointed, but never was at uie meeting called
for the purpose.

How were you appointed to that charge? —
By the committee.

Was Baird a member of the committee ? —
He was.

Do you know who printed the statement oC
the proceedings? — It was given in to Mr»
Crawford, I understood^

Cburf,— That will not do.

Mr. Drtdirmom^.-^Were you ever present at
the printing f — I was, in Crawford's shop.

Did you ever get any copies of the printed*
statement from Crawford ?^— I did- get from:
Crawford printed copies.

Court, — Did you buy them ?<— I was to pay
for them.

Lord Etrmand. — Then you did buy them ^
— I did not buy them particularly.

Mr. Drummond, — Do you know whether
Baird sold any of them? — ^He did.

t>id Baird ever tell you so i— He said hei
got quit of them ; but he did not say he sold '
ttiem.

Did he say he got quit of them all ? — ^He
said so.

Did he ever get any from you ? — ^About fonr
doxen.

They were of those you got from Crawford T
—They were.

Did you give him all you had ? — ^No, I had
eleven or thereby left.

Had you any conversation afterwards with
Baird about those remaining?'— I am not
certain if I had. I do not recollect at present
if I had.

I think vou said Baird mentioned he had got

quit of all his. Did he make any remark on

^ournot having got quit of yours ?— 'I said I had

still eleven or thereby; and he seemed surprised

as he had got quit of all bis.

Lord Hermttnd,—W\aX did you understand
by getting quit of them ? — Tlie committee had
liberty to ger what they wanted ; and copiea
ward given to them when applied for.

Cotir^— The witness does not understand
the question. Was any price taken for them f
— I understood they were to be 4d. each ; thai
this was fixed by the committee.

dil

wmi nomas Bairdjir SidHian,

A. D. I«17.

[33

Wtre tliey disposed of by sale or by gift ? —
I do not know woether Baird sold them or not.
He was to pay for them.

LordAdBoade. — Did you ever go to Craw-
ford's with fiaird to inquire after the .publica-
tion ? — I did.

What did yoo ask ?— We asked if any of the
pamphlets were ready.

Which Off you asked ? — I am not certain.

Yon both went for diat purpose } — ^Yes.

Andrew Fimde cross-examined by Mr. Jtffrejf
for Thomas Baird.

Yon have mentioned that yon (wo wese both
members of the committee for arranging about
this meeting? — Yes.

. Were there many other members ? — From 20
^ 30> I think.

• These were eonstituted before the meeting
was held ? — Part. There were moK added a!&
ierwaras*

. Was any notice given to 4he magistrates
about the meeting? — ^Mr. Baird and I were
nominated to call npon the magistrates^ toin-
£>rm them of the meeting.

Yon went ? — ^I did not. Mr. Baird said, he
went.

Did he report that the magistrates had no
-objeotions to the meeting ? — ^He did.

Tbere was no interference of the magistrates?
—None.

Were yoopresent at the meeting? — ^Yes.

Was Mr. Uaird there ? — ^He was.

Did he speak ? — ^No.

Did yon hear him make any remarks es-
-preasing satis&ction or dissatisfaction -on what
was said ? — ^I heard htm make a remark about
the fMosage I was talking of in Alexander
McLaren's speech coneemiDg allegiance.

What did he say? — He said it was a pity it
Jiad been spoken.

He disapproved of it ?— Yes.

Yon said, yoo, Mr. Andrew, and Mr. Baird,
were appointed to take char|pe of the printiug
«.of an account of the proceedings? — Yes.

Was any motive alleged for the pdoting^ —
At wasTor defraying me expenses attending
the meetiog.

Was there any discussion at the meeting of
the commitiee about the proprie^ or impro-
priety of printing the wnole of what had
been so stated at the public meetiDg ?»Yes,
there was.

Did any body object to the printing at all ?
— ^I think two were not for printing at all ; Mr.
Jolmston, and Alexander McLaren.

Was M'Lareo a member of Che committee ?
—Yes.

Did Mr. Baird take any part in that discus-
jnon ?^I do not remember that he did.

Was there any discussion ubout the propriety
«f pnnliog certain parts?— Yes.. .

Did Mr. fiaird take any part in that discus-
«on?— Hedid.

Was he for printing all the words ? — ^No, he
not

What words did he djeet tO| or what pas-

sage ? — ^I do not remember any other -passage
than that about allegiance in McLaren's
speech.

What did lie say as to that passage ? —
That he would be inclined to keep it out alto-
gether.

Did he say any thing ^Ise about it? — ^I do
not remember particularly any thing else ho
said.

Was that proposition of his adopted by 'the
committee or not ?— No ; it was not.

Did it appear to you, that Mr. 'Baiid ai>*
proved or not of that passage? — He disap-
proved of that- passage, and wished it to be l«t
out.

Did you understand that rii 4he members of
the committee were to take copi^es-of thisstnte-
ment, to forward the sale of it, and to account
for the 4i. for each copy? — ^Yes; the com-
mittee were at liberty to -get what tiumber
they wanted, 'for the purpose of defraying the
expenses.

bid they all get copies^?— <I do not •know
who did and who did not.

Mr. Baird keeps a shop ?— Yes.

Did aUlhe members of the -committee "keep
shops ? — No.

What kind of a shop is Mr. Baird's ?— A
grocer's shop.

Has there been any other generkl meeting
since this in Dean Park?—None that I know
of.

Certain resolutions were adopted which are to
be found in the printed statement, and peti-
tions 40 parliament were, in coikformi^ to them,
prepared and forwarded ? — Yes.

Was 'there any disturbance or tumult at
Kilmarnock since>that date? — I do not recol-
lect of any.

Do you recollect any disturbance recently
before that, a riot about meal ? — ^Yes. ^

Before the public -meeting took place, about
autuinn ?— Yes; I do not know the exact time
when it was.

Idond Aivooaie. — ^You said that Baird disap-
proved of printing the passage about allegiance:
do yon remember whether M'Laren said any
thing, and what did he- state about that passage?
— ^I think he said, that if the committee thought
there was any thing wrong, he would rather it
were kept out altogether.
' That was as to At passagein his own speech ?
—Yes.

When Mr. Baird objected to printing the
passage, did he stale his reasons why he
thought it an improper passage to be printed t
— The reason was not stated therei that I re-
member ; but when he and I were talking of
it by ourselves. ^

And what did he say ?— He said to me it was
a veiy indecent expression.

He slated liothing to the committee of his
reasons ? — ^Not that I remember.

Andrew Finme cross-examined by Mr. QtwU
for AbeKender McLaren.

I ask the witness to fook at the' printe4

33]

57 GEOKGIC HI.

Trial ofAtvumitr M'Latm

[34

Speech, and find tbese vrofds, '' The fact b, we
are ruled by mea only solidtoaa for their own
aggrandisement"? — I see them.

Were these words spoken?— I do not re-
member.

" And they care no further for the great
l)0dy of the people, than they are subservient tu
their accursed purposes.'' Was that spoken ?
I do not remember. I paid almost no atten-
tion to any part of the speech, except that about
allegiance.

How did it happen that you remember that
passive so particularly, and none of the rest of
the speech ? — ^It strudc me particularly.

Then you do not mean to pronounce aa
epinion as to aay thing that was uttered by
M'LareDy except the passage about allegiance?
—No.

Do you remember what passed about the
opeaiug of this meeting ? who asked McLaren
to open it? — I do not reipember who asked
him.

Did he rolanteer, or was he requested to
open the meeting ? — He was backward to open
the meeting.

And he was asked by the coomittee ? — He
was asked by the committee.

When was he asked ?->At a meeting of the
committee.

Lord Advocate. — How many days before the
meeting? — I am not certain.

It was some days f — ^It was some days, I
think.

Mr. Gerk. — Are you sure it was some days
before the meeting ? — I am certiun ; for imme*
diatefy or the night before the meeting, he
said he was in doubts whether he would do it
or not.

Did you use any particular means to keep
tlie passage about allegiance in your recoUec*
tion ?— It struck me so forcibly at the time,
the language was so ttrong, I kept it in my
memory.

You fipientioned other passages. What part
p( the passage do you allude to just now ? Did
you consider the whole passage strong ? — ^The
word hell struck me. That was the particular
part I thought was wrong. I did not consider
.any thing wrong in the rest of it at the time.

Did you write- down the passage P — No.

Are you quite confident of your recollection
of the whole of the passage f — I am quite oon-
6deat it was very near to what I repeated.
Whether the words, " cries," or " voice, were
used, as I said before, 1 am not sure of; but I
am confident as to the rest of the pasaage.

LordAdvoeate. — At the meeting, had McLaren
any paper with him ? — I saw none.

Did you ever see any paper with his speech
on it ? — Never.

Did you ever hear him speak of the terms of
it after it was printed ? — I recollect of him
iayiag repeatedly, that the passage about alle-
giance was a quotation fvom Shakespeare which
came into his mind.

When did he first say that— Was it at the
meeting of the committee ? — 1 do not recollect
of his ever saying that at the committee ; but I
have heard him repeatedly say so.

WUliam Merrie sworn. — Exaniined by
Mr. Drummond.

Are you a writer in Kilmarnock ? — Yes.

Do you remember being at a public meeting
held near Kilmarnock on the 7lh December
last ?— Yes.

Do you remember the speeches made at that
meeting ? — Part of them.

Who made the first speech? — Alexander
McLaren.

Is that the man behind me ?— Yes.

Do you remember any part of his speech ?—
Very little of it.

Do you remember aay words near the oon-
dttsion of it ? — Yes.

Can you repeat them ? — The hindmost part
of it was, ''^hell with," or '^Ibr such alle-
giance."

What allegiance was that be was speaking
about ? — If I remember right, he was wishing
the people to address their august soTereign ;
and he meant their allegiance to him.

Did he give any reason why this allegiance
was to go to hell ?

Mr. C/erfc.— He has not said that.

Mr. Dnamnomd, — ^Why did he apply the ex-
pression to such allegiance? What did he
say ? — If 1 remember right, it was, ** if he
tamed a deaf ear to the voice of his people."

Did he say any thing about petitioning ?-~
Yes, he winied ^e people to petition their
august sovereign.

What more do you say of this speech ? — I do
not remember more.

Lord Ilermaad.^He has ^plained enough I
think.

Mr. J>iiiiffiioni.—Do yen remember any
other part of his speech ? — No.

Did he use any words to shew what his
meaning was when he spoke of the voice of
the people ? — Not that I remember of.

Lord ^lAK)c«te.— You said he wished the
people to address their august sovermgn ; and
then you stated he said, ** if he turned a deaf
I ear to the voice of his people." Did he add
anything? — I do not remember wheUier he
added any thing or not.

After he used the words, ^ if he turned a
deaf ear to the voice of his people," did he say
any thing or not about " to hell with such aU
legianoe ?** — ^That came afterwards.

Lord Hermamd. — Did he mention in what
way the voice of the people was to be express*
ed ? — ^No, he wished the people to petition.

Lord Advocate, — Did you, after this meetings
see a publication called ** Account of the Pro-
ceedings of the Public Meeting of Uie buf>
yeiees and inhabitaatt of the town of Kil^ar-

95]

aid Tkomoi Baud fir

h, D. )«}T.

b»

nock, bftld on Ihe 7th December iat6» . for the
purpose of deliberating on the most proper
method of remedjing the present distresses of
^e conntTj, with a fnll report of the speeches
oa that oeeasion"?— I never saw it» except
•Be day Ijisgon the tdble before the sheriff.

WUHkm Menit GT0s»-examined by Mr. Grcmt,

Do yoa know wbat was the purpose of the
meeting ?— It was fot tbt purpose of petitioning
the aoTeieign.

Do you know, if in point of fact, petiliona
were drawn up and signed by the persons who
were at the meeting ?~I coiiLd not say.

Did yon sign any of the petitions younelf !
—No.

Did yon ondeistand from what passed^ thai
it was tiie intention of McLaren to induce the
people, and you as one of then], to petition the
legislatnre, or to excite violence and disturb*

lard AdooeaU. — ^I object to this queelioik

Idtrd Jutike GMc— The UBderstanding or
c^nion of any witness is not to be lutened to
in evidence.

Mr. GtmI.— What did vmi ooB«Bt tohe the
object of M^Laiea'tspeenl

luriAdoocaU. — ^If this course of examina-
tion go on, there can be no objectiopr to my
reexamining the witness. I did not finish my
examinatioD of him, but on the idea that I
could not put such questions.

Mr. Cferifc.-^We hare put a question, and
we should not be interrupted. 'ih» lord advo-
cate puts in his claim to put such questions. But
he must not interrupt us in older to make an
examination himself.

€010*^— He has no such intention.

Mr. QtmUj-^l put this other question : In
point of bet, did this speech excite tike people
to commotion or dietaminee ? — ^No.

Then was none upon that occasion f —
Hone.

Was it the tendency of.MliKien's speech,
from what yon observed, and from what passed,
to create eommotion or disturbance^ or to in-
doce petitions to be sent to the Prinoe Regent
nnd the two houses of parHament ?— -It wai to
indnoe the people to petition the Prince Regent
and the two houses of partiaraent.

Did he oxptesB himself in any way with re-
gard to the person of the Prince Regent in
tfant speech ?--Not that I remember of.

When he advised diem to lay their petitions
at the foot of the throne, did he say anv thing
uCttie angnst prineef-*I do not remember anv
thing of the throne; but he mentioned hn
aogost mhicc

hk what terms t-^In ihvourable terms.

In terms perfectly legal and becoming a good
snhjectT^Yes.

Euffk O-m^ord swoTn.-^£xamiDed by
Mr. SoUdtor Generai,

Are you a printer ai Kilmarnock ?-^Yes»

I De yoq remember a meeting hdd in De-
cember last in tbcneighbeuihoQdof thattewn)
—Yes.

Was a MS. aceount of the pfoeeediags at
that meeting afterwards beought lo yott t» btf
printed?— Part of iu

Did you attend the meeting ? — Ko«

Look at that ?

[Pamphlet handed to the witness.]

That was printed in my office.

Who brought it?— The part I saw was
brought by David Andrew, I think.

Was any body in company with him?— I
think not.

Courf .— Has Andrew any more names than
oa«?«-l do not know.

Mr. SoUcU&r Generai, — Did you see him in
the other room to-day ? — I did.

Who attended the press while this MS. wat
printed ? — I did not see, as the printing-office
IS at a distance from die shop, and 1 was only
occasionally there.

Did Thomas Baird attend the printing? — I
think I saw him once or twice ; I am certain
once.

Are you able to say whether this publication
is a true copy of the mS. that was Drought to

you ? — I cannot say.
"^ ^ it?—'

whom I employ.

Who printed it f— Thomas Murray, a man

Haye you been paid for the printing ? — No.

Who is to pay you ? — ^The persons who em*
ployed me.

who are thev ? — ^I look to Mr. David Ai^
drew, Mr. Andrew Finnic, and Mr. Baird.

Lord. Ad9oeate. — What was done with the
publication after the printing? — Cqpies were
taken ftom me in quantities : Mr. baifd got
a qoaatity, aad Mr. Finnie and others got
quantities.

Mr. jSsficitor Gfeneri/.^-How ' ttnoy co|nes
were printed ?— About 400 1 think.

How many did Baifd get ? — ^I cannol My.

Can yott say abauft what nnmbarP— iWa
might be four, five, or atx doien.

Lord Jdvocate, — Do you know M'Laren ?-*
Within this short time.
Did he ever complain of his speech being

Erinted inaccurately ? — No, J never i|>oke to
im in my life, to my knowledge.

Thomoi Murrmf sworn,— ^Eimmiaed by

Are you journeyman to Mr. Cmidbrd ? — Mr*
Crawford is my emplojer.

[The pamphlet vras shown to the witness.]

Was that printed at Mr. Crawford's printing
office ? — Yes.

By you ?— Yes.

Is it a correct copy of the MS. giren yon for
the pnipoae of being printAd ?^TI»ra ware
some alterations in the proofs.

Corrections of the. press ?— Yes.

«7]

57 GfiORGB m.

2Vm/ ofMuuMitr M'Laren

(a,s

What altenUions ?«-Typographical errors:
and peiiiaps in bodm sentenoes grunmatical
alterations.

Were there any alterations of the sense P —
None that I remember of.

Who gave in the MS. ?— The first part I re-
ceived fi^m Mr. Crawford.

Who gave you the rest ? — I received it at
different times.

From whom? — ^It was sometimes given in
when I was not in the oflice, and sometimes
when I was in it.

Who gave you any part of it? — Mr. David
Andrew.

Did Mr. Webster bring any of it? — Once, I
leoMmber*

^ Who came to superintend the printing, and
to inquire after it?— That person.

Any body else f — No.

Mr. Baiid ? — ^He was twice or three times at
the utmost.

For the purpose of inquiring about the pub-
tication? — He was several times in the office. '

What did he do when he came ? — ^He came
to the office along with Mr. David Andrew to
look over the first proof.

Did they make any alterations ? — One was
proposed 1^ Mr. BainL

What was it ? — ^I do not know.

Can you point it out in the publication f^—^
No, for I never had it in my hand but now and
before the sheriff of Ayr.

Was any alteration made in consequence ? —
None.

Why was it not made ? — ^It was a grammati-
cA alteration that was proposed, I thought the
alteration proposed was wrong, and I had a
right to make the pamphlet giammatical.

What became of the MS. from ^ich the
imbUcation was printed? — It went as all of
them do, it was destroyed ; I was not desired
to preserve it.

Lord ilANioale.— Look at the passage on
page r. " to — with allegiance,'' was that
Dlank in the MS. ? — If I remember rightly,
that part mt the MS. was erased, written over
again, then erased and interiin^; and I do
not know but I ordered my apprentice to
leave the blank, as I oonld not make it out
To make the sentence join properly, I left it
blank*

Did Mr, Baird, when he came and looked
over the MS., object to the blank, or state any
thing? — He never looked over it.

You said Mr. Baird came with Mr. Andrew
and looked over the first proof. Did he mdce
any observation about the blank thete left? —
That was not in the first proof; the proof I
spdce of was the proof of the first pages of the
pamphlet*

I%oma» Mmrmf cross-examined by Mr. Jeffrey
tor Thomas Baird.

- Weietheproof sheets tent to any one to be
revised ?— They were.
To whom?— To Mr. David Andrew.

Any to Mr.
brance.

f — ^Never, to my remem-

fPart of the MS. was shown to the witness.]

Mr. Drummond, — ^Did you ever see that be-
fore ?— I never saw it befi>re ; it never came
into my hands.

Thonm Myrr^ cross-examined by Mr. Greitf
for Alexander M^'Laren.

Was any part of the MS. pencilled ?— I do
not remember ; the MS. was very imperfect,
and was partly well and partly ill written ; it
was partly in quarto and partly in folio, in dif-
ferent bands.

Do you remember the part that contains the
blank, what size of the paper was there ? — It
was folio. I remember it quKe well. There
were two sheets of foolscap paper written on
without being folded.

Was it of die size of this, folded and written
on as this f —

[A sheet of folio paper shown the witness.]

Yes.

JeMci MmUme sworn. — Fjcamined by
Mr. SoUcUor General.

Do you remember a public meeting at Dean
park, near Kilmarnock r — ^Yes.

Do you know that there was a committee to
prepare and adjust the business of that meet-
ing ? — I do.

Of whom did it consist? — I really cannot
tell ; of a number of persons ; of myself for
one. .

Was Mr. M'Laren one ? — ^Yes.

Mr. Baird?— Yes.

Were any resolutions prepared before the
public meeting ? — Yes.

Were they read to the meeting which took
place ? — Yes.

You attended that meeting ? — I did.

Who first spoke ? — ^Alexander M*Laren.

Was there any meeting of this committee
after that public meeting ?--<Yes, that efen-
ing.

For what purpose ? — The particular purpose
was, to consider whether they should pnnt their
resolutions and speeches.

Who attended that meeting P VTere the
panels there P — I think so.

Was it resolved there to print the speeches
and resolutions ? — Yes.

The several speakers gave in copies of their
speeches P — I believe so, but I did not see them
given in.

Did you see any thing at all giren in ? — ^No-
thinff but my own speech.

Were you present when the prooft of the
proceedings were revised t— I was not present
at the revision of any of them.

[The pamphlet was shown to the witness.]

Is that the publication of the proceedings
which took place at Dean-park at the time yon
mention ? — 1 suppose so.

it9l

mad Tlumu B&hri/or StUtbm.

-A. D. I8I7.

C30

By ^vbom does it appear to be printed? — t
By Hugh CraiHM. !

Was it resolved' at the oommittee that he
sbcnild be the printer f — ^Not particularly.

Do yoa know the MSS. were sent to h'im ? —
I do not know.

Did yott never read the pamphlet?— No.

Not even yoor own speech? — No; I gave it
to Mr. Walter Andrew v> revise. i

Are these the resolutions that were read to
the meeting } — I have glanced at them. I can-
not say particnlarly they are the resolotions,
but generally I believe so.

Lord AdoocaU. — ^You are acquainted with
McLaren ?— Yes.

He was a member of the committee? —
Yes.

YoQ have, of coarse, had conversations with
him about the meeting and the publication ? —
Yes» in a general way.

Did yon ever hear if Baird or he complained
of inaccBiacy in the statement given of the
proceedings ? — ^Yes ; Alexander M'Laren.

What did he say? — That one sentence at the
end of his speech in the printed account, and
cited in the indictment was not in the original
M3« He said it runs in this way : speaking of
the petition being presented to tne Prince Re-
gent, ''he hoped he would lend his gracious ear
to it, as he was bound to do by the constitu-
tion ; but if he did not do so, then to hell with
allegiance.^ I think he said this was not in
the original speech.

Did yon hear his speech ? — Only the sound
of it.

Did you hear any of the words of it daring
the meeting ? — I cannot say I did.

What did M'Laren say was the inaccuracy P
— He complained of the latter part of the sen*
fence altogether being in it at all, because it
was not in the MS.

Did be complain of the word ^ hell T

Mr. CierL^l object to the question. There
is DO such word in the publication.

[Ibe witness was ordered to withdraw.]

Xord .ideooafe.— The drift of the eiamina-
tion I vras carrying on at the time was, to
bring out of the witness what was the conver-
sation between him and McLaren — whether
McLaren objected to certain parts of the pub-
Ucation which he is alleged to have done. The
witness said he never read that publication. I
am entitled to put the question, in order to
ascertain the witness's recollection ; and par-
.ticulariy, whether M'Laien complained of any
word bein^ in the MS. I submit that the ques-
tion I put IS competent, viz. whether M'Laren
complained of *' hell to allegiance^' being in
the MS. The thing, I admit, is now irreme-
diable, because my learned friend has instruct-
ed the witness by stating that there is no such
word in Ac publication ; Vat I say it was ir-
regnlar in my learned friend to intormpt me
and thus to prepare the witness.

Mr. CterL— Nobody is more oompetent to

{mt regular questions to witnesses than my
ord advocate, but I cannot permit him to
proceed irregularly. What was the question
put? Whether McLaren complained of hell
being in therMS. That was implying that
the words were in the printed pam|)hlet, and
nobody is entitled to suggest a fidse fiict to a
witness. No fact must b^ assumed in putting
a question to a witness.

Lord Advocate, — ^I wish the Court to keep in
recollection what the question was to whidi I
wished to get an answer — whether or n#
M'Laren complained of being misrepresented
b^ '* heir being in the printed copy. My
friend now admits that the question was not
irregular.

Mr. Clerk. — ^The question is not as it was

put originally.

Lord Advocate. — ^I put it to the Court that
such was the question.

Lord Jmtke Gerk,-^! do not see any thiofp
out of form here.

Lord Adoocatej^^Tbe opposite counsel were
out of form in interrupting me, and they have
rendered the question useless. If they again
interrupt me, let them first desire the witness
to be removed.

[Witness brought back.]

In«whatvray did he say he was misrepresent-*
ed ? — ^I did not say so. I say he complained
of the latter part of the sentence being ^put in,
because it was not in the MS.

Then he did not complain of being misrfr^
presented? — Yes, in one word that he did no^
pronounce the word ** their," or ** our,"wfai^
comes in before *' allegiance.''

You are looking at the printed statement
Did vou not say that you had not seen it be-
fore f— I did not say I had not seen it; I said
I had not read it.

Lard JuUke Clerk, — He says M'Laren com-
plained of being misrepresented with respect
to a word before ^ allegianee/' and he is en-
titled to look at the pamphlet.

WHnen. — As ftr as my judgment leads me
to take notice, he complained of any thing w
tervening between the word ^ to" and " alle-

S'ance," because it was not in his original MS.
e never intended to say it; it was merely a
word of some Play that oconrred to his memory,
and he let it out.

Mr. Solicitor G^teraL—jyid he tell yon,
then, how the passage should have been
printed ? — He told me the identical words he
used. The last words of the sentence were,
^ to hell allegiance."

Lord Advocate. — ^Did he complain of the
passage as stated in the indietneat ?— Yes ; he
gave the indictment to me to read.

Lord Jmtkc Oerfc.— He said tlie passage

57 GEOltGl m.

Trial -qfAlttMnider M'Larmt

tss

was not toiTCcdy giv^ ekher in tke indielfDeot
or the priDt«d account t — Exactly.

Lord AdoQcote.^^}htw long is it since be
«ade this complaint to yon ? — I think the very
day he received the indictment.

Jama JMiutoM'tevoss-^xamned by Mr. Jeffrey
for Thomas Baird.

Yoi^ mentioned that both of the paneb were
members of the committee with you. Was
JUr. Baird at the pnUic meeting f — ^Yes.

Did yen then* or al any •ther time, hear him
make any ffemacks upon McLaren's speech ?— >
No,-

Did y«tt ttot hear him at any odier time
.loake any revtfks 7— Yes, I have heard him
several times complain, and say it was a pity
the last sentence had been put in.

Spoken, ot put in ? — It was a pity it had
been spoken at all.

Were yon present at the meeiiag about the
printing ? — Yes.

Was any objection made to that passage ? —
*! was'agamst the printing altogether^ not that

with belter timas. What were then the
neral wages ? — Abont 12«. a week, from 12«. t#
Us.

I ne^ not therefore aak if there was th#
greatest possible distress at Kitmamock f -^
There can be no doubt of it.

Yon talked of the meeting which was held
near Kilmarnock. What was its object f —
Solely to petition the Prince Regeift, and boA
Houses of Parliament, to consider the grievances
of the country. It was enr opinion, that one
irrest reason of them was the defective state of
the representation, more particularly in our
part or the country ; and therefore we partictk-
farly recommended attention to that.

Were any other objects in view besides pe-
titioning, any other means thought of in order
to obtain redress of these grievances ? — ^None.

Was any conversation ever held in youy
presence by M^I^ren that tended to any
other purpose than what is in the petition ? —
None.

Did you ever hear from him any hint, that
induced you to believe he entertained disloyal

I thought there was any thibg wrong in the | opinions, or seditious intentions ? — Never

^ttblicatAOB ; but judging Ifrom my own, I sup- {
|M)sed aA- the speeches weoe made up in a hun-
ffied way, and wooU not stand the scmtiny of ,
4ihe public eye.

Do you remember Mr. Baird making any
objections to the publication ?— -I do not par-
ticularly.

. - Do yon know any thmg of ilie reasons stated
far ot agttnst the psinting ?«^The pnblication
w&s le defeay the eipenses inenntd at €xe
public meeting.

■ Was the sale of the ^blkation intnsted to
any ^riiaolar pefS4»sf«-3k> she eommiMee in
foserflil.

[The MS. of the witness's speech was shown

to him.]

Was that written More or after the maei-
ing t — Before.
You ofl^iated as chairman at the meeting ?

—Yes.

•Jenflf Mmione ei088««xsnrined l>y Mt. ihwM
for Alexander McLaren.

You are a muslin agent ? — ^Yes.

For any of the Glasgow houses i — Yes.

From that oivcunstaooe, have you an op-
portunity of .being much acquainted with the
situation of the manufacturers in Kilmaroook ?
,— I think so.

At present now, what may the most active
weaver be able to clear in the course of a
week?— At present things are ratheir better
than they were some time ago. From a cal-
- culation I hare made, an active weaver may
^t present gain about 5t. 6d. a week.

What might he be able to gain a week on an
•nei^ge of Uie last year? — From 4s. to 4s, 6J.

Hsrw many hours work a day was necessary
to gain this. snm?-^At least^ fioia 14 -to 1$
hours.

You hare compared this period of dbtress

Have you occasion to know whether lie was
of a peaceable and orderly disposition and
habit of life ? — I never heard or saw any thing
to the contrary. '^

How long have you been acquainted witii
him ? — ^These eight years.

Does it consist with your knowledge thathd
was a member of a volunteer corps at ulasgowt
^I have heard that he was.

Do you know of his being in the local mi-
litia, or Kilmarnock volunteer corps ? — lie was
in the rifle corps at Kilmarnock. ^

' Was the public meeting conducted in aik
orderly and peaceable manner ? — I considered
it so. It was with no other intention I underr
took the management, and that any gentleman
will see from my speech.

What was the state of fhe weather? — It
was Tery coarse. There was hail^.and wind,
and snow.

Perhaps that was the reason you did not
hear the speech ?^TbBt was the reason ; I just
heard the sound, but not the words.

It was not vreatber well calculated fbr -^y
person hearing a speed) distinctly ?*>->It vnd
very bad indeed.

Yon said you wert present at a meeting of
the committee, when it was proposed to print
die proceedings, and that M'Laren was there,
and that you objected to the printing. Did
any other peraon object? — Mr. M'Lsu«n ob-
jected particularly to the printing of his
speech.

What passed upon that occasion? — ^There
was a great deal of altercation as to the print*
ing ; and it was at last agreed that those who
had made speeches should give them to a
committee appointed to superintend the print-
ing.

Did Mr. McLaren still object to his speech'
being. printed f — He said, though the restweilv
printed, he did not see any reason for printin|f

amd nomoi BaMJbr SmUe^.

asf\

and that be bad no mteation tkat monitng of
•pcaktDgitaiL

Were jon present at any meeting of the com-
mittee prerjons to the pnblic meeting, for ar-
lansiog about the public meeting ??— Yes, I was
•t them ail, I think.

At a previous meeting were any steps taken
as to appoiatiBg a person to open the pro-
oeedingsat the pubtic meetiDg?— -It was dis-
cussed ; and after a great deal of discussioB,
M.*Jju2m agreed, thai if no other person came
forward, he wonld do it ; and he raenfeioned to
ae since the meeting, he had no idea he should
open the business, as another person had given
a kind of promise to do it, ana that person not
appearing on the field, he went to a public-
house uid prepared some ebsenrations. I saw
him the ai^ befofet he raeelingi, when be
tohl me he had hopes another person would
openiL

Do yon know who that other penon was ? —
Tes, M'l^ren told me.

Was the name of that other peiwm publicly
mentioned ? — No, it was not.

Was either of ypu a member of the com-
mittee that superintended the printiag? — ^None
of us.

Do yon know anything o^ a distonbanoe that
iDoJc place about meal previoos to the meeting ?
— I heard of it.

Were yon atKilmamoek atthe time 7— I was
about two shops from it at the time. I did not
eoQSider it a mob or distnrbanee.

Have you occasion to know how MlaiPen
condneted himsidf upon that oooisionf— No, I
faav<enot.

You said you hare known him eight yean*
Did ynu erar know him to be oolinected with
any body of men assembled for any seditious
or illegal purpose f— Never, so ^ as I knew
him, otherwise I would never have kept com-
paa^ with him.

You ar^ an extensive agent?— Itleri are some
much more extensive than I am.

Have yoa ever heard MfLareh wet a member
of any society for any purpose t"<-Of none )»%
^' ittea.

A. D. 1817.

[34

Cswf .^Does this comnuttea stiU contimie i
— Hoy the committee does not continue.

Mr. GntAt^'WwB tfaia committee open for
an^ person to go to ?— We never had a meeting
imA wat noc op«B ; and there were always
Sana ocben present besides the members of
the committee. Any one was asked to attend.

Wase a»y pieeaaiions taken to Iceep your
mceeding^ secret firom tha magistnoes f—
None.

Was it emir hiaftad or proposed that it would
be twcasaaiy to keoD the psooaedangs seotat
finnn the magistrates r — ^Never.

la point of lao't, were the raagisttales made
M^iatad with the intention of the meeting >
—I believe so. I «aUed and told Mr. fiaird I
«ohll not 'attend unless the magisttates were
nade acquainted with the intended meeting<

V0L.1XXIII.

Be was anpomt^ ^o tell th«m. Mr. Ba!«
said he had criled on the magistrate^ but had
not found him, and he said be would go agaiti,
and I understood from him he did go again.

Was there, according to your knowledge,
any obstfuction offere4 by the magistrates tb
the meeting?— I saw nbtle.

Do you kno^r whether, in point of fact, pe-
titions, founded on the resolutions adopted a:t
that meeting were prepared to the Prince
Regent and the two Houses of Parliament ?-^
They were.

Did you read them over?— I think nearly.
I heard diem all read.

Does it consist with your knowledge that
they were forwarded ?— I was toW so by Mr.
Baird. I read in the public papers that they
werepresented.

If 1 were to show you a printed copy of the •
petition, should you remember it f

Lord Advocate, — Nothing iasaid in the in-
dictment >about the petition.,

Mr. CMr^Mach will be said in defence
upon this veiy fact about which we are
examining the witness.

Lord Adooeate, — ^Defences have been given
in for the panels, and no notice is taken in
them of productions being to be made. Your
lordships will take notice of this. I only wish
you may keep this in view.

LordJugUee Clerk. — We must receive what-
ever may go to exculpate the panels.

[The account of the petition in a printed copy
of the Journals of the House of Commons

was handed to the witness.]

Mr. Gran/.*-* Were these the terms of the
petition 7 — ^As far as my judgment serves ma»
that is the substance of the petition.

Have jrouany doubts whether this is the
slme petition? — I have none at all. Nona
can suppose my memory is such as to say these
are the identical words.

Your answer is quite proper. I have put a
cross at the margin. Say whether you recollect
particularly that the words there form part of
the petition ?

lord iMNKote.-—! consented toa fawqoes-
tions being pvt to the witness, hot I now ob-
ject to any farther questions that are not cross.

Mr. Grant, — ^I am just finishing this part of
the examination. I have only to read a pas-
sage, and ask the witness whether he remem-
bers it. '' When we came to discover those
alarming facts, our hearts stood appalled, as if
we had trod on a volcano : We looked around
for the -cause, and we found it in the very
corrupt and defective representation of the
people in parliament. We found, that the
Commons House, whose members ought to bcL
chosen annually by the peopfe — should be the
organ of the people^s voice — ^the guardians of
their rights and of - the public'purse — had lost
all control over the sarvants oC the Crown, atid

35] 57 GEORGE in.

Trial qfJlkxander McLaren

[39

had become aubserrieoi to the will of the
minister of the day : That the great body of
the people are excluded from their elective
fraochise — that a majority of your honomrable
House are returned to parliament by proprietors
of rotten boroughs^jlhe influence of the Treasury
and a few other indiYiduals; and that seats
therein are bought and sold like tickets for the
Opera."

Were these the words in the petition ? — I
think these identical words were in the petition
which was forwarded to parliament, and or-
dered to lie on the table, I believe.

You remember being shewn this printed
publication. You said M'Laren complained
of the latter part of his speech being inserted
because it was not in the manuscript ? — ^Yes, I
did.

Say what part was not in the manuscript? —
I cannot say what were the words he spoke at
the meeting. What he said to me was, that he
concluded with a line of a play, and it was ** to
hell allegiance/'

Mr.' CA^Ae.-^Did he say that any part of the
passage before that was not In his manuscript ?
— He just said the latter part of the sentence was
not in. the manuscript.

You said you haa a conTersation with him
when he shewed his indictment, and that he
complained as you have stated. Had you any
other conversation with him on the subject
than on that occasion ? — Perhaps there might
be two or three, but to the same purpose.

Did he attempt to influence you as to what
evidence you should give at this trial? — ^Neither
of us considered I should be called on to give
evidence. I did not know what he had spoken,
nor about the selling of the pamphlets.

Lord Advocate, — We have had a very elo-
quent petition read. By whom was it com-
posed f — I do not know.

Did any member of the committee compose
it? — The committee for superintending the
printing were appointed to compose it, namely,
Thomas Baird, W. Finnic, W. Andrew,
D. Andrew, and W. Webster.

They produced it to you as their own com-
position r— It was produced and read at the
meeting.

Did they say anything that led you to suppose
that it was not their own composition P — I do
not think they did. •

Did they not say from whom they got it 7—
They did not. There was some amendment
made upon it.

Upon vour oath can you state that none of
them said to you anything about the getting
of the petition f ~I heard nothing of it.

Did any member of the committee give you
to understand they had not drawn up that pe-
tition, but sot it (^m another quarter? — It
would be ridiculous for a man to speak posi-
tively to a thing he does not recollect of.

Hugh Wibqn sworn.— Examiued by
. Mfk Jjnttfff^ond,

Were you at a public meeting in Dean-park,

about the beginning of Detember P — ^I believe
it might be about Uiat time.

Who was the preses of the meeting ? — James
Johnston.

Who made the first speech? — ^Akxaader
M.'Laren.

Did you^read an account of the raeech ?-?>
Yes.

Was it correct ?-^I do not remember.

Did it appear correct or incorrect, generally
speaking ?— -Yes, it appeared correct. .

Did you see anythmg that was incorrect ? —
I cannot say that i did.

Doyou know where it was sold ? — ^At Thomas
BairdV

[Pamphlet was handed to the witne9s.J

Did you buy this copy in Baird's shop ?— -
Yes, I believe I did ; I am certain I did.

Do you see your subscription there?— Yes.

Where did you write it? — In Mr. BrownV ■

Who was in the shop when you bought it ? —
I do not recollect.

Lord AdvooaU.-^ATe there any booksellers in
Kilmarnock ? — ^Yes.

Hugh WiUon cross-examined by Mr. QraiU
for Alexander McLaren.

What was the object of the meeting? — To
consider the propriety of petitioning paniament
for a reform.

Had the meeting any other object ? — ^None^
that I know of.

Did any person recommend aaything else ^
^Not that I heard.

Did you hear the panel McLaren speak upon
that occasion ? — ^Yes, I was there at the time, X
heard part of his speech.

Was it a very stonny day P — ^Veiy stormy.

Was there hail?— Yes.

Were many umbrellas up? — ^A great num-
ber.

Was any noise made by the pattering of the
hail upon them so as to prevent you from
hearing ? — ^Yea.

Was every thing conducted in an orderly and
peaceable manner? — Yes, they did.

Did you sign the petitions to the legislature ^
— Yes.

Do you recc^ect what the terms of the pe*
titions were ? — ^No,'

Are vou well acquainted with the panel
Alexander McLaren ? — ^Yes. -

How long have* you been acquainted withr
him? — ^A great many years; five or six, or
better.

What character has he possessed as to peaee-
abledemeanourandloyalty ?— A good character^
as far as I know.

Has he had the reputation of being seditious
and troublesome, or loyal and peaceable ?—
The latter.

Was he ever connected with any sod^7 —
I do not know ; he was a member of fSe com--
ipittee for. petitioning for reibrm. > ^ , -

But with none other ?^With no other thail
knowo£

d7]

ttiuf Tkomat Batrdjbr SetUtioH,

A. D. 1817.

[38

Do yon think joa would probably have
lieard of it if tlM fact had been so t — I think

so.

HaTejoD erer heard him iklk of the measores
of government ? — Yes.

What waj did he express himself? — ^He used
to approye of the measures of government.

um you eyer hear any arguments between
him and others on politics ? — Yes, he took the
government side.

Do yoQ know of his having been a member
of any miUtary body? — I believe he served in
the Local Militia, in the Rifle corps.

Did you look on him as a man of a sedi-
tious turn of mind, or as a friend to the go-
vernment?— ^As a friend to the government.

Did jou ever hear any imputation to the
contrary cast on him? — I do not remember
-ever hearing any.

Do yon know any thins about his objecting
to his speech being printed ? — No.

Lara Advocate, — ^Do you know
the petition? — No.

Did yon ever read it? — ^Yes.

you know who drew

Dand Bow sworn. — Eiamined by
Air. DrwnnoHdm

What is Mr. Baird?— He has a grocer's
shop.

Were the pamphlets sold at Mr. Baird*s
shop? — Yes.

Many of them? — ^Many. I could not say
as to the number.

Some doaens? — Yes; some dozens.

Fifty copies? — I believe there mif^U

What were they sold for? — ^Fourpence each.

DaM Bom cross-examined by Mr. Jeffity
for Thomas Baira.

Do you know if they were sold any where
^e? — ^Yes.

LordAioocaU, — Where? — Different persqns
of the committee got them.

Mention who got them? — Mr. Finnie, Mr.
Johnstone.

How do you Imow that? — Because I saw
them given away. They were given to be sold
by Mr. Baird.

Besides thpse given to the members of the
committee, several dozens were sold in your
shop ? — ^Yes.

Jamtt Sainton^ sworn, — Examined by
Mr. Drummond,

[The pamphlet was handed to the witness.]

Qave you seen this pamphlet? — ^Yes.

Have you seen in it the statement of a
speech said to have been made by you ? — Yes.

Have yon read it? Is it a fair account of
what von said ? — ^It is near about it.

Did you corop6se the speech yourself?-^
No.

Where did you get it? — From Mr. Baird.
• Before the meeting!— Yes.

Did you speak or read it ?— 'I read it.

James iSamfoii cross-examined by Mr. Jeffrey
for Thomoi Baird. .

Look at what is written before the beginning
of that speech, where it is stated, that a Mr.
Burt and a Mr. White could not attend, but
had transmitted addresses to be read to the
meeting. Yours was given in the name of
Mr. Burt, and you understood it was Mr.
Burt's speech you read? — Mr. Baird said Mr.
Burt haa sent it to him.

It was not Mr. Baird's writings but Mr.
Bun's?— Yes.

The following Declarations of the Panels
were then read.

Declaration of Alexander M'Laren^

At Kilmarnock, the 26th day of February
in the year 1817, in presence of William
£aton, Esq. Sheriff-substitute of Ayrshire,
appeared Alexander M'Laren, weaver in
Kilmarnock; who being examined, de-
clares. That he is a native of Perthshire,
and in April next he h^s been eight years
in Kilmarnock. Declares, That ihere was
a public meeting held at the Dean Park,
near Kilmarnock, on the 7th of Decem-
ber last : That that meeting was for the
purpose of petitioning Parliament for a
reform of gnevances. Declares, That pre-
vious to that meeting there was a com-
mittee of certain individuals in Kilmar-
nock, for the purpose of bringing about
the said meeting : That the declarant at-
tended that committee, and David Itam-
say Andrews, writer in Kilmarnock, Tho-
mas B{drd and Andrew Finnic, merchants
there, also attended that meeting, and the
declarant has reason to suppose they were
members of it as well as nimself. De-
clares, That the declarant first appeared
on the hustings and opened the meeting ;
and being shewn an ''Account of the
Proceedings of the Public Meeting of the
Burgesses and Inhabitants of the town of
Kilmarnock/' and wherein is engrossed,
on part of the fifth page, sixth, and part
of the seventh page, what the declarant
said at opening the above meeting. De-
clares, That the declarant has perused
said speech, and it is near what the de-
clarant said on the above occasion, except
what is said about the middle of the se-
venth page about allegiance> which the
declarant thinks he did not deliver in the
words as expressed in the publication.
Declares, That on the morning of the
above meeting, the declarant put into wri-
ting what he must say at the opening of
the meeting : That he afterwards gave his
part of the manuscript to those who were
appointed by the committee to superii^
tend the printing of the proceedings, that
the same might be published along with
the rest.' .Declares, That James John-
stone, muslin agent tn the Waterside of

IIOJ

57 GEOBGE UI.

Trial o/Akxamdtr U'Lare*

L49

Rilraarnock, was called to the chair, and
on that occasion he made a nteech, vhkh
was much approved of hj those present.
Declares, That the resolutions, as engross-
ed in said publication, are the same that
were read at the public meeting, and the
manuscript was read to the committee,
previous to the meeting, by Thomas
Baird, merchant in Kilmarnock, one of
the members. Dechu^s, That Hugh Craw-
ford, printer in Kilmarnock, was employed
to jpnnt the proceedings of the meetmg,
which were utetwards sold at fourpence
a-piece, to enable the committee to de-
fray the expenses. Declares, That the de-
clarant attended « meeting of the commits
tee, when those who spoke gave in their
manuscripts for printing, and the decla-
rant thinks the foresaid Thomas Baird was
present : That a committee was appointed
to superintend the printing, and the said
Thomas Baird and Andrew Fionie were
«f that committee. And being shtewn
the printed report before mentioned, de-
"clares. That he heard none of the authors
find fiiult with any thing that is therein
contained; and the said publication is
doqueted and signed by the declarant and
•Sheriff as relative hereto. Declares,
That the words on the sixth page, '* The
fact is, we are ruled by men only solici-
tous for their own aggrandizement, and
they care no farther for the great body of
the people than they are subservient to
their accursed purposes,** were in the ma-
nuscript wrote by the declarant, but were
not repeated by him at the public meeting
when on the husting^s as above. And the
foregoing declaration being distinctly
read over, he declares that it cont^uns the
truth. In witness. Sec. &c.

Declaration of Thomas Baird.

-AX Kijmamock, the 26th day of February
in the year 1817, in presence of William
Eaton, Esq. Sheriff-substitute of Ayrshire,
appearied Thomas Baird, merchant in
Kilmarnock; who being examined, de-
clares, That there was a meeting of several
persons in the town of Kilmarnod^ in the
month of November last, for the purpose
of taking Into consideration whether or not
there should be a general meeting for the
purpose of petitioning the Prince Regent |
and both Houses of Parliament for a re-
form : That the declarant was preses of the
first meeting only: That there were seferal
•after meetings, some of which the declarant
attended, and the 7th of December last
was fixed for a general meeting at the
Dean Park : That the declarant attended
•that meeting, and Alexander M'Laren,
"weaver in iLilmarnock, mounted the
hustings, and opened the meeting. with« a
speech : That Jaxnes Johnstone, mslin
•ngent in KUmamock, ^p^a^ called to the
vhair^ and read a 9peeo|^,tQjhe mating

from a memorandum book. And being
9hown a manuscript consisting of nine-
teen pages, declares. That he is pretty
certain that it as the same that he read
to the meeting, and which the declarant
saw some days afterwards in. Walter
Andrew's office, and which is doqueted
and signed as relative hereto. Declares,
That the proceedingn were ordered to bo
printed, and the declarant was appointed
Dy the committee, along with several
others^ to superintend the printing : That
Uie declarant assisted ii^ correcting the
grammatical errors in the Manuscript,
along with the said Walter Andrew, and
the declarant assisted a little at the print-
ing-office in correcting the proof copy.
And beiog shown a half-sheet of paper^
tided on the back '< No. 5. Mr. Burt'a
letter/' declares. That said words ace of
the declarant's band-writinp^ and the said
halMieet of paper was given in hv the
declarant to the printer, along witti the
rest of the manuscripts ; and said half-
sheet of paper is doqueted and signed by
the decnrant and sheriff-subMttnte as
relative hereto. Declares, That the pro-
ceedings of said meeting were printed
by Hugh Crawford, and a great Mmber
of copies were sent to the declarant's
•hop, and be reuiled liheni at fourpence
a-piece; and being shown a cop^p e€
the publication, declares^ That it is a
copy of the proceedings whieh weie pub^*-
lished and circulated as above, and is
doqueted and signed as relative hereto ;
all which he decides to be true. In- wit-
ness whereof, &c. &c.

SVIDBXCS tZI BXOULrAflTION.

Jamm. Smmrn swom.-^-Examined; \ff

Mr. 'Crani,

* _

Yon remember a public meeting at Kilmar-
nock last December. Was it for the purpose
of petitioning parliament ? or what was th«
object ? — To petition parliament.

Were von a membier of any committee re-
garding that meeting ? — Yes.

Are you well acquainted with the objects of
those who were concerned in that meeting ?-—
I know as to any meetings I was^ at of the
committee, what I heard there.

What was its object then?—- Entirelyto pe-
tition pariiament.

Do you know who were proposed to open
the business ' of the meeting by a speech ?^^
Different, persons.

Do you remember any of their names^?-*!
could not say I entirely recollect,, except him -
that did it ; bnt I know that others were pro-
posed.

At what time was it proposed that Infr.
H'Laren should open the meeting? — About a-,
weelf. before jthQ.paeetiog took ris^i *

Hid he accept readily thi^.mfi^ of • ofteMg
the meet]i^9.J-«lie did la^

4 >

41]

awB juMMMf BnnLjw Sttknon^

A. B« i«n*

Did te dqtet to doiiif it?— Y«ik

Did lie mtggm toy one ebe to do ttf—

Whom f— Mr. Blackwood.

Did be suggest any other penon? — He was
for imposing it on me.

Did you consent to do it? — Ho,

What was the last time he urged yon f —
ilboM an kQw befinrt the meclkkg took
Mace*

Did he state he was Mtpawd or unnre-
pared ? — I did not know ttuA he had anjthinff
orepared ; but he said he wei not a fit hand

It wi» on ironr refusal that he undertook the
office himself? — ^Tes.

What was the object of the petition ? What
was it about? — ^To obtaid a reform in parlia-

Was there any conf ersation as to what was
to be done in case the petitions were not as-
sented to ? — Yes.

Whafwas to be done? — ^Tb petition again.

Did you hear Mr. M'Lau-en make his
apeedi ?— I was present and heard some of it^
but I did not hear it distinctly.

From what cause ? — One reasod was> that I
was behind him, and the wind carried the.
aoand of his voice to die other side ; and as X
knew I had to read a speech myself, I was a

late? Did be oppoM those ttiat mm% mi tile
Opposition side WYes.

Was he a man ^yen to riototti prooeedings,
or was he industrious sC his business, and quiM
in his tonduct?— 'He was indnstrioQl ^ Ui
bnsinessy and quiet in his conduot.

Was he ever connected with any aoefittfv
except this coannitlee ? — No, n«TW.

Is he a sober man, or is he given to ciwpiiliy
and liquor ?-^Not that I know of ; hois a sober

FioiB the general import of die epe«c1s dM
ywigatbeaiu purpose WaS|loetoite riot end'
dbturbance, or to induce People to come fy^
ward to sign this petition ? — Tiie latter.

Do you know that petitions were proposed ?
--lfc>ttlQS&. The resolutions wei« roid and
approved of, and the petitiOtiff were to be ae-^
cording to the spirit or these resolutions^

Wb^ ste^ were taken for preparing the
petitions?—) could not say positively t^ut
tbat«

Did you ngn^ any petitions ? — Yes.

How many? — -Tbree, I think.

To whom were they addressed ?^-To the
Prince Regent, the House of Lords, and the
House of Commons.

Do you know whether they were forwarded ?
— ^I beliere they were.

Were you ever molested in^ consequence of
having signed any of these petitions ?-^No.

Did you overhear of any 6ne being mo*
tested?— No.

Hftve-you known Mr. M*Iiaren a long time f
— A considerable time.

In yoor opinion what was his character as to
qinetness of demeanor and loyalty ?-^He was
regarded as one of the loyalest men where he
lived previous to this charge of sedition^

Have you ever oonverawl with him on poli*
tieal questioBS r-*SometiineB' about thv doors ;
and I have heard him disj^ute withothei% and
support the side of administration.

How lon^ ago i» it* since -you heard bin eat-
pteM his opmkn on saeb subfeeMi ?(«-«More than
a^rm^iafieii

In disputing with others what M%^46A^ hi^i

Were yon present at At coianittee when
there was a talk of printing tba proceedings J**^
zcs.

Did yon see, or hear read before the oom^
mittee, a manuscript nurporting to be a speech
of Mr. McLaren? — It was not at that com-
mittee I think ; it was at a previous one.

There was a sobeeqaevt ooxBnrtttee?-«Y6S.

And you heald read eivev wlwt f«ifovted
to be a speech of Mr. McLaren ? — Yes.

[fThe pamphlet was handed to the vritneaa^}

Dkl yo« ever read this pulditeatio»?-^Y4^

De you sedoHeet a passage m the p¥ulfed
speech about allegiance? — I could aal sa^; I>
think so.

Look at these words. Da ytta riUVeiiib«iF
bearkig die manueeript read? and do ybu
recollect in it the words at the end diour
allegiance, and* so on, which are nbw in* that
prittled piper V-I eoaM not say they* W€re
there.

Can you say they werr Ae<i there T-^ttley
were not there, X thinh^ when he-delivered the
pwper.

Say what was not there ?— I think the tW6^
or three last lines were ttot ia the manuseript :
*' Yes, my flellow countyyittfepM^^ imp sa^h> a casi^
to -^^^ with' our allegian4l«<i''

Do you recollect the app^iVttOft of tKtf
manuscripr!-^! thlnk4VWttS<roMedii«if a^nditi-
row strip Ulie a ^heet* folded^ over agi^iii;
It had been folded, I think, before if wtiiM
written o&t

Was the papM foldod thur?-f A?^e«l Of*
foolscap-paper shown to the witness folded ia
octavo.]'^ lea,, it was folded in that manner.'

Waa it written bookwise F-^Ves, t thinl^<
so.

I do not ask' you who did what I am going;
to mention, but did any body at that-comnii"
tee, not Mr. Whuehj. make aav pencil mark*
ing ou that p^per ? — YesyX think tliey did. It*
was not Mr. M^ren.

Do you know what theeO' marks Were?>*-L
did not see the marks*

Did you hear any persoaread tbe alteratioa
made by the marks ?-^Ye9»

Was this correction imntediately^ read ?-^
Yes.

Did the person who read that conrectionvead •
it as a correction he had made withthese peadL
marks P^-I think ho did,

WhK^ was the puqKwt oCtbat cofreoiioal-^
It is now at the end of this'printed sMOth.

You 8iglMd<.tli« p^litioa'to' iM»«HoaSfiM>f

431

£7 GEOROE lU.

Trial tjf Alexander M'Laren

[44

. Commons : should you know the purport of it
if you saw it r — I think I should.

Look at that ? Jpage 82, of the printed yotes
of the House ot Commons.] — I cannot re-
collect eyery word or sentence. I think that
is the petition. I see sentences that were
there.

You recollect the words where you see a X ?
r~I could not say positlTely.
• Do you recollect any of them ? — One part
ahout " indemnity for the past" in the sentence
— [The passage which Mr. Grant read was
pointed out to the witness.]

Do you remember that passage ? — I cannot
remember it.'

James Samaon cross-examined by the
Lord Adoocate,

Who were present when these pencil marks
were made on the manuscript speech } — ^I for
one.

I suppose so. Who more? — ^John Ken-
nedy.

That is two. Any more ? — Archibald Craig.

That is three. Who else was there ? — I do
not recollect any.

Do you say there were no more present ? —
There were others.

Let us hear the names of some more of them ?
—Mr. Baird was there.

Was M'Laren ? — He was there.

Was it by any of those you haye named
that the pencil marking was made ? — Tes.

Which of them?— Mr. Baird.

You have the book lying before you, tell us
what was altered? — The latter clauses or
clause.

Was any thing put in or> left out ? — It was
put in the manuscript by Mr. Baird.

Did he give his reason for putting it in ? —
Yes; because the manuscript deliyered was
not complete according to the way in which
the speech was spoken, and therefore Mr. Baird
put it in. . ,

Did Mr. M'Laren make any objections to
this alteration ? — I did not hear.

Mr. Grant. — ^We would haye brought seve-
ral witnesses in addition to those for the
crown, to testify as to the character of the
prisoner McLaren ; and it is my duty to inform
you of a mistake by which we haye been de-
priyed of this opportunity. The letters of
exculpation, with instructions to cite witnesses
to proye the good character of the prisoner
'^M'Laren, were, by a mistake of the proprietors
of the coach at Kilmarnock, forwarded to a
person of the. some mane as that on the address
on the parcel in a Afferent town^ aiui not re-
turned till the night of Thursday before the
trial, which circumstance we are m condition
to proye to your lordships; and we have
therefore nothing we can legally produce in
addition to the testimony given of their cha-
racters. But we haye certificates which your
lordships may perhaps allow to be read.

Lord JuUice Ckrkt-^Hoi at preseut; you

may state the import of them in the address to
the jury ; but they cannot be put in here in
evidence.

Lord Adoocate, — If apy statement had been
made to me of a wish that the trial should
have been delayed, I would have willingly
conceded the delay.

Mr. Grpnt, — ^Tbe thiAg was not ttiought of
sufficient importance, and the mistake did not
appear till last night.

Mr. Clerk, — Your lordships have heard some
evidence which shows that the meeting was
for the purpose of petitioning the Regent and
the two Houses of rarliament. And you have
heard that a petition was forwarded to the
House of Commons ; and reference has been
made to a paper, which' we state to be a copy of
the printed votes of that house.* We wiidi
to produce evidence of this, and of some others
of the same description, for the purpose of
showing what sort of language is permitted to
that House. I need not state how necessary
it is for our plea to show you what language it
is lawful to use in such cases. lu preparing
the petitions, and in debates on the subject,
such language must of course also be permit-
ted. We can have the productions proved by
Mr. Grant.

Lord Advocate, — I think it competent to ob-
jtet to these productions, and to the evidence
proposed to be brought as to the accuracy of
them.

Mr. C/crA:,— Doyou admit them?

Lord Adoocate. — \ have not read them, and
I know nothing of them.

Lord Justice Clerk, — The lord adyocate only
admits that it is the practice to print votes oif
the House, and that these offei^ in evidence
have the appearance of being copies. It is
not usual to call on counsel to be evidence in
the trial. As an agent for the prisoners could
not be admitted as evidence, I think it would
be better to call on some other person than
Mr. Grant.f I observe a noble lord present
whose testimony might be given.

Lord Gilliet, — Mr. Grant can^be examined
as a hayer.

Ljrd Advocate, — I go so far as to say that
I haye no reason to doubt the genuineness of
the copies.

Mr. Clerk, — I conceive you haye been in
the use to receive papers from agents, and to
examine them as havers of these papers. An
agent does not give parole evidence in the

' * £yen the printed Journals are not, in Eng-
land, ^evidence. 8 How. Mod. St. Tr. 685;
1 Phil. Ey. 406.

f Mr. Grant the proposed witness, was one
of the counsel for the panel M'Laren ; he was
at the time of this trial a member of the House
of Commons^

451

and Tkotttttt Btttrdfm Sedition.

A. D. 1817.

[46

cause, but only gifet his testimony to the au-
thenticity of a pgper in his poflsesBion; that is
all that Mr. Grant would be asked to do. Mr.
Grant can certify, not only that he believes
them to be the printed Totes of the House of
Commons, but |also that he lecetyed them
under cover from the Vote-office, certifying to
him that they are the votes of the House of
Commons.

Lord Adoocate. — The evidence would not be
complete ; Mr. Grant can only explain how he
came by these papers.

Jjord JvMtice Clerk, — In a legal sense what
Mr. Grant could certify would not make them
evidence. The question of their being actually
the votes of the House would remain to be
established.

Mr. Gerk. — After they are made public,
they are matters of notoriety, which any per^
sons may refer to before your lordships.

Lord AdvocaU.^I admit my belief of their
genuineness.

John JndretDS sworn. — Examined by Mr.
Jeffrey for Mr. Bidrd,

Are you chief magistrate of Kilmarnock ?—
Yes.

Were you in that office in December last ? —
Yes.

Do you recollect a public meeting in the
Dean-park ? — I do.

Did you receive any notice or application
regarding that meeting } — ^I think I aid ; one
or two days before it took place.

Who waited upon you? — Mr. Baird met me
in the street, and told me of the meeting a few
days before.

Wliat did he state to you ? — ^That he was
appointed by the committee to wait on me, to
inform me the meeting would take place if I
would allow it^ and that if I would not he
wrguld give up the intention of holding it ; I
said I did not approve of the meeting, but I
thoiwht I eoold not prevent it.

VT^M it a numerous meeting P — I could noi
say, I was not there.

Does it consist with your knowledge that
the conduct of those at the meeting was
orderiy or otherwise ? — ^There Was notmng of
riot or disturbance that I heard of.

No breach of the peace ? — ^None.

Have there been any since? — I know of
none ;' I recollect none.

Was there any kind of disturbance recently
before ?-^In September, I believe.

You are acquainted with Mr. Baird ?— >Yes,
I have been long acquainted with him.

He is in a respectable way of life ? — ^Very
respectable.

11 'he a* quiet and peaceable person, or
tomnltnous . and disorderly? — Always peace-
able.

Doel it <$OBsist vftith^your. knowledge that he^
hdd a military cominission in a volunteer or*'
local militia cdrps ?^I 'generally uiuierstood he
^|s a captain.

Have you seen him acting in that capacity ?
— ^I think I have.

Down to what time did he so act 7 — I could
not say.

WaUer Andrew sworn. — Examined by
Mr. Cockbum,

What are you ? A writer ? — ^Yes.

Do you know Mr. Baird ? — ^Yes.

Do you rerpember the meeting held at Kil-
marnock in December last? — ^Yes.

There was a committee for arranging the
business? — Yes.

Were you a member of it? — ^Yes.

Was Mr. Baird ?— Yes.

You have seen him at the committee ?— I
have.

Do you recollect any discussion after the
meeting about printing the speeches delivered
there ? — ^Two or three days after the meeting
Mr. Baird called on me with the manuscript
of a speech which was delivered there. I said
I thought indecorous expressions were in it^
which ought to be kept out. He urged that
objection at a meetmg; but the objection
was overruled.

What were the precise expressions which yon
called indecorous or vulgar ? Do you remem-
ber the expressions ? — I could not repeat the
words : the passage was the same in the ma-
nuscript, as in the printed pamphlet, where I
read, *^ which he is oound to do by the consti-
tutional laws of the country; but should be be
so infatuated as to turn a deaf ear to their
just petition, he has forfeited that allegiance^
Yes I my fellow-townsmen, in such a case to
with allegiance.''

What was it you objected to f— What I have
read.

And Mr. Baird concurred in that objection,
but he was out-voted ? — ^Yes.

Was there an^ other speech, to the printing
of which he objected ? — ^The last in the pam-
phlet ; the speech of Mr. Kennedy.

What was his objection to Kennedy's speech ?
— ^He said it was nonsense.

Did he object to any of the. othen ?--^To
part of Mr. Burt's.

What was the objection to it P— He said it
would have been letter if it had been clothed'
in milder language.

From your conversation with^him, did you
understand him to be the author of that speech ?
-^No. He expressed regret that some of it
was not expressed in milder language.

Did you ever hear him express a desire to
have every thing dgne quietly, so as to give
oiTenca to nobody ? — ^Yes.

Was there any riot at the meeting?— Not-
that I heard of.

Did he ever express to you any desire tfant
government should be. overawed ?7-No.

He wished regularity of prokjeeding? — ^He
said, the only object was to petition constittf-
tionally, so as to give offiince to no one. . .

What was the object of printing the pro-
ceedings?—To defray the expenses intenrred.

4ffi

1 ^HB^ass in.

Wtf ^^fumiv NflMm

r4e

Rer. JAmef IGr ihooorf sworn ^ — fixumined by

Mr. Jeffrey.

Are yoa acquainted with Mr, Baird?*-rl
have had that pleasure for nearly two years.

Do you know him intimately? — Very inti*
mately. No one more so.

In the course of yi>ur aoquamtanee with Mr.
Baird, have youlnd ODQTeraatioiis with hira
•a political sttfagects ?— I have.

Has he ei^prnsed hH^ sentiments with apptr
rept .sii^cen]^ 4n4 eon?i^an?— rWith the
greatest I have no doubt.

Did he express 9n attaoUoieiit to the ooasti-
tution as established by laW) or a doiix* to
have it altered ? — He. eiipressed % desire (hat
the popular part of the constitution shouU be
fUieB^thened an4 inen^gsi^* MTer that the
constitution should be ov^rlQXted*

He wished some r^fomnstion of the rcpfe-
aentation of the Hojase 9f Comwiaiis f— Yea.

Did he ever* eif^l^^ by what means he
thought ^lis )ihott]4 be ^yitenqpled? — I have
oft^n h/eard him say h? w^ anxious that any
thing Uke viol^nqe sho^ < be avoided, aad
that none but constitutional meaaur^a ^ouM
\/e taken.

Does Mr. Bair4 attei^i your congnegatioD 7
—Yes.

Is he a man of peacfoaSle an4llK>i9li.con4uct?
i^-To the best of my knowled^ he ie sow

Did he ever discover any ^onjew^y lo rioteus
or disorderly cooduot ?-rrl %Md^'Obiirted ajiy
ti^Dg or that kind i« him*.

He is a peaoeable jam WI think 4P»

Has he si^y f}imil|[)-rHei haa «#iref«l chilr
dren.

Dp you Ihink Mm Q9^bb) of : i|»tonlionaI1y
exciting tumult or violence among the people?
—I should cei^tajiily think he it itog^iheff in-
capable of designedly doing so.

John WyUie syfon, — Examined by
Mt. CoMum,

Do you hold anr officer ^t^f gtHrarmnent ?
—I am surveyor of tiM^fflr.t)i« thiWI diatiiet of
Ayrshire.

Do you hold any military; eeiminisaioD ?-*-(
ifraa in thei Volpm^erp till 1609, %iid Istill hold
^ooromi^sion m^ I^o^al HtliUtia.

I need hardly ask you if y^ eve a Mm re^
fe^mer yoursrtf fr-J imm 9/im^^.mfmtins»
%! auch purpiwHS*

. Yo>iare r^tbeir.iiLiQifteriaUy ineUn^dC I |W^
•ome. Do yp^,kn^vt Ml • JM^ ?— Y<es.

What app«ar«4 to* be hif politieal aei^ti-
i|j9^8 Ff^ue je^DMd.W be a. ftieB4 tothe cdiih
etitution, but wished a refiuia 19 tb^ repreae»-
t«|ion.

He had no desire to overturn thoi dOPItita*
tian^—I h^ve.h^aid bii%. wa^ly. e;rtol the
oonstituticuu

Xa he a :<|^|.iiiani^Ye9» h« baa beea. ao
ei^ ^^ I kMiFbiqiy and th^t> h tb^ gteatM.:
part of hiaiife.;

lahe.reapfjiBtlMe in pfiiot of sHlMtioiil^

Htre YOU temd idciig wKk bhn is ny
eorpa ?-^I was anbalteniy and he was mcaptan
in the Apshire.

Did his oonduoC as an officer give satida^
tioo ?— He was a ^^try active officer.

Do you know of a aseeting held at Kil-
mamodL in Deoember last ?^-I beard of it.

Had you any conversation with Mr. Baiid
about it? — ^Yes, once or twice. I beard %.
{gentleman read an account of the proceedings
m a company from a Glasgow paper.
■* Did you ever hear Mr. oaird say any thing
about the speeches ? — I never heard him make
any remarks on them.

Do you know Mr. M'Laren ? — ^Yes.

Was he in that corps you spoke of? — ^Yea,
in my company.

Did he behave well ? — ^As far as I know,
sir.

John Brovm sworn. — Examined by
Mr. Jeffrey,

Are Tou a writer in Kilmarnock ?— Yea^

Have you a partner in business ?— Yes, the
town-clerk.

Are you acquainted with Mr. Baird?— Very
well.

Is he a respectable man ? — One of the most
so in, the town.

Has he a family ? — He is a widower, vridi
four or 4ve children.

Do you recollect a meeting in December
last for petitioning parUament ? — ^Yes, I do.

Do you know wheiher a oommittee met be-
fore and after that meeting } — I believe one sat
several days befoue the meeting.

Were yon a member of it t — ^No> nor vras I
ever at the meeting.

Did Mr. Baiid ever etunmunicate to you
what was passing?— Scarcely a day passed in
which we did not converse on the oocotrenees
of the meeting ; and I was in the habit of adu
ing what passed at the committee.

What did be state as the object of the peti-
tioners ? — ^To prooire a reform in parliament*

By what means ?^^By constitntional means.

Did he disavow violence or other means ?*—
MostdiMincftly.

You know Mr. Baird was at the pvblio
meeting: Did he give you any aoeonnt of what
took place there ?-*Yes^he told me who spoke*
When the proeecdings were pnUished, I was
amrpcised at seeing a pacagiaph which I did
not look for, and I told him it was a pitjr it
was there. He sud he disapproved of it him-
self, and was against printing it at aU^ but thai
a vote was taken on the subject by the com-
mittee, and they determined to print it, as they
didnot wiah i^gaibled statcmeirt of the prO'
ceedings to go before the public.

Did he make, obaorvations ott any of the
other speeches?— He pointedly, o^eoted ta'
McLaren's speech.

Did he object to any of rtbe^ oAem ?— *He
diaararoffed of one ov.two, n baring lan^ag* >
t»ft treeni and 'disHwpaetiul.

Does it consist with your knowMf%4bat \^*

4«]

and Thomas Btttrd fir Sedition,

A. O. 1817.

1 50

haa held comnusnoos in militaiy iy>rp8 ?-^He
commanded a compaDj of rifle Tojunteers for
'some time.

Did he give satisfaction in his military ca-
pacity ? — ^I Defer heard any complaint against
nim. I always conceived he behaved like a
gentleman.

Was he lately amwinted a commissioner of
police of the townr— Yes, at last annaal elec-'
tioo.

From what you know of him was he sincere
in his sentiments in favour of constitutional
modes of proceeding for obtaining redress of
grievances? — ^There is no question of that.
He never approved of any other than constitu-
tional modes of redress. I have known him
intimately these eight or ten years.

Was he likely to say or do any thiog to pro-
duce discontent ? — I conceive he would be the
last man in the world to be guilty of any thing
of the kind.

Are youderk to the road 'trustees? — ^Yes.

Did you understand Mr. Baird objected to
these expressions not as being improper in
themselves but as likely to lead the persons
.who uttered them into a scrape ? — He did not
appear to be apprehensive of any coesequences
to result from them, but he objected to them
. as improper expressions.

Are yon acquainted wi^ MILaren? — ^A
little. I have met him on business.

Do yott know anything of his character f — ^I
never heard anything against him.

Ijord AdvocaU, — Gentlemen of the jury ; you
have heard from the indictment th^tt tne panels
are charged generally in the major proposition
with the crime of sedition, a crime well known
in the law of Scotland, and with the general
description of which you must be already fa-
miliar, but with which, at all events, you have
had addiuonal means of being made acquaint-
ed, ttcfOL the luminous and satisfactory judg-
ments of their lordships, delivered this morn-
ing in tlie commencement of ^h&trial. I ^hall
not, therefore, in this part of the observations
which it is incumbent upon me in discharge of
my public duty to adoress to you, sav any
thing in further explanation of the law of sedi-
tion, whidi — as a crime calculated to unsettle
the-order of society, and to introduce tumult,
anarchy^ and ..bloodshed into these realms,
which, for upwards of a century have enjoyed
the highest oegree of freedom that ever fell to
the lot of any people-r-is one of the most dan-
.gerous whicn can be committed against the
state. Before, however, concluding the re-
marks with which I shall have .to trouble you,
it may be necessar^r for me to draw your atten-
tion to the application of the law to ue charges
prefierred against the paneb. In ^e fir?t in-
stance, however, I shall confin.e myself exclu-
sively to the evidence which has been adduced,
in order to establish that the acts at least, a1-
. leged in the indictment to have been committed
. by the prisoners, have been brought home to
.tibem.

VOL. xxxin.

Tou will observe, then, that in the minor
proposition of the iiidietment, the prisoileri
are charged — McLaren with having, at a public
meeting, on the 7th of last December, held in
the neighbourhood of Kilmarnock, and attend-
ed principally by the lower orders of the peo-
ple, used- certain seditious and inflammatory
language, in a speech which he then deliver-
ed— a speech calculated to degrade and
bring into contempt thef goverment and legis-
lature, to withdraw therefrom the confidence
and affections of the people, and to All the
realm with trouble and dissention. For the
precise expressions which he then employed, I
shall beg leave to refer you at present to the
copies of the indictment which are before you,
in which the passages of the speech are detail-
ed at length, and to which I shall hereafter
be obliged more particularly to call your
attention.

The other panel, Baird, is charged with
having published his speecli, and with having
been accessary to the printing and circulating
a seditious tract or statement, purporting to be
an*' Account of the proceedings of the public
meeting of the burgesses and inhabitants of
the town of Kilmarnock, held on the 7th of
December 1816, for the purpose of deliberat-
ing on the most proper method of remedying
the present distresses of the country, with a
full report of the speeches on that occasion."
Then follow particular passages contained in
that publication, which are alleged generally
to be seditious, tending to inflame the minds
of the public against the constitution of the
kingdom, and which, it is affirmed, were pub-
lished by him with the wicked and felonious
purpose of exciting sedition against the Go-
vernment, and of withdrawing" the affections
of the people from the established order of
things in the country. The publication has
been duly authenticated, and although I shall
afterwards more particularly refer you to some
of its most striking passages, the whole, I trust,
will receive your full and deliberate considera-
tion.

In the conclusion of the indictment both
prisoners are charged with being accessaries
to the crimes committed by each. From this
you will understand, that if, from a full consi-
deration and investigation of the proof which
I have laid before you, you should be of opin-
ion that the prisoner Baird was accessaiy to
making the seditious speech delivered by
M'lAren, or that the other panel, M'Laren, was
accessary to publishing or circulating the sedi-
tious libel, stated more particularly to have
been sent into the world by Baird, then you
. will have to ifind, supposing you are of opinion
that the speech and publication are seditious,
that both are guilty art and part of the crime
laid in the indictment.

. In consideriug this part of the case as' a
question of evidence, I do not think that it is
necessary for me to go very deeply into the
import of the depositions of the witnesses \ for
I conceive, that wh^le you are calleil upon to
E

513

57 GEORGE III.

Trial afAUtanitr M'Laren

159

discharge a most important duty, in declaring
the guilt or innocence of the panels as to the
crimes libelled, and which may depend on
considerations altogether unconnected with
the mere fact of the deliyeiy of the speech by
the one, or the publication of the libel by the
other, you can have no difficulty in forming
an opinion, that both, and each of them, at
least, did commit the acts which are charged
against them in this indictment. You can
have no difficulty in being of opinion, that it
is proved that M'Laren did deliver a speech at
,the meeting, and that the speech did contain
the expressious which are cited in thi^ indicts
roent : Neither, in my apprehension, can you
doubt, that the publication in question was the
work of Baird ; that he not only superintended
the printing, but assisted in preparing the
manuscript for the press; and that he sold
and distributed this libel, prepared under his
own eye, with the utmost diligence, indefati-
gable zeal, and persevering activity. In like
manner, I, at least, cannot see where a doubt
can ezisty that it has been legally proved that
M'Laren was art and part in the publication,
and that he is now bound to answer for that
publication which was thus sent forth into the
world, be its qualities what they may.

But though that is the impression on my
mind, and although I have no doubt that the
same has been made upon the minds of all of
you, it is, notwithstanding, my duty to go
over th^t evidence, and to endeavour to point
your attention to its different parts, as appli-
cable to the charge against the panels sepa-
rately,— distinguishing, as I have said, the
bare facts of the case from the view which I
am afterwards to take of the nature and im-
port of the expressions.

In the first place, then, you will attend to
the evidence, by which it is proved that the
speech in question was actually delivered by
the prisoner M'Laren.

Upon this branch of the case, I shall call
your attention to the statement given by the
prisoner himself in |iis declaration emitted be*
tore the sheriff. But, before doing so, it may
be proper for me to state to you distinctly, that
in considering this part of the evidence,
you must remember, that nodiing contained in
this piec^ of evidence can inculpate the oCher
prisoner, but can only affect the party by
whom it was emitted. Neither, I will fidrly
tell you, is it to be taken as conclusive evidence
even against him. It is, however, a very strong
circumstance of presumption against him,
ioQAde, as it has been adnutted to have been in
this case, voluntarily, while the prisoner was
sober and in his sound senses, deliberately
andseriooaly. I shall submit to you, there*
fore, that when the admissions made in this
declaration axe taken with the parole proof,
no doubt can be left upon your mind of the
Mth of the allegations made in the iodict-
fnent) in point of fact^ regarding the' prisoner
H^Laren.

In the first place, then, the declaration of

M'Laren states, ''that there was apnbUc meet«
ing held at the Dean-park, near Kilmarnock,
on the 7th of December last : that that meeting
was for the purpose of petitioning parliament
for a reform of grievances. Declares, that
previous to that meeting there was a commit-
tee of certain individuals in Kilmarnock for
the purpose of bringing about the said meet-
ing: tnat the declarant attended that com-
mittee, and David Ramsay Andrews, writer
in Kihmumock, Thomas &ird and Andrew
Finnie, merchants there, also attended that
meeting : and the declarant has reason to sup-
pose that they were members of it as well as
himself. Declares, that the declarant first ap-
peared on the hustings, and opened the
meeting ; and being shown an * Accocnt of
the proceedings of the public meeting of the
burgesses and inhabitants of the town of
Kilmarnock,' and wherein is engrossed on
part of the fifth page, sixth, and part of the
seventh page, what the declarant said at open-
ing the above meeting, declares, that the de«
clarant has perased said speech, and it is near
what the dedarant mad on the obooe oocoiioii."
He next, no doubt, makes an exception as to
the inaccuracy of that speech, ^ except what is
said about toe middle of the seventh page
about alleffiance, which the declarant thinks he
did not deliver in the words as expressed in the
publication.''

Tikis, you will observe, is not denying the
purport of the passage in the libel, but onlV
the words in which £e import was conveyed
to the multitude, and we shall see afterwards
whether the prisoner be correct in this part of
his statement. *

He next declares, " that on the morning of
the above meeting, the dedarant put into i&rtt-
ing what he naat $ay at the cpemn^ of the meet-
ing: that he qfterwardt gaoe hs part of the
nuamtcripi to thote who were apfomted (y the
committee to mferintend the printing of the pro^
ceesSngt, that the tame might he pMUhed wmg
with the rett. Declares, that James Johnstone^
muslin-agent in the waterside of Kilmarnock
was called to the chair, and on that occasion
he made a speech, whidi was much approved
of by those present. Declares, that the re$o»
bitiontj at engroued in taid piMcationf are the
tame that were reed at the public meeting, end
the manmcrift wot read to the committee prevUme
to the meetmgy by Tfumat Baird, merwmt hit
KilmamoAf one of the membert. Declares, that
Hugh Crawford, printer in Kilmarnock, waa
employed to print the proceedings of the meet-
ing, which were afterwards sold at fourpenee
a-piece, to enable the committee to defray Ate
expenses. Declares, that the declarant attend- _
ed a meeting of the committee^ when those'
who spoke gave ih their maauteripts fSor print*
ing; and the declarant thinks the fdfesaid
Thomas Baird vras present :^That a committee
was appointed to enperintend the printing,*
and the said Thomas naird and Andrew Fin-
nie were of that committee. And being shewn
the printed report before mentioned, dedares

ana Thomas Baird^fir SedUicM.

9^1

^k^ kt heard mm 0f the mdhonfadfadt wUh
«iy tkm^tlud it Aaron caUmned; and tbe said

SublicatioD is docqueted and signed by the
eclazant aod sheriff as relative hereto.'' And,
before condiiding, be" declares^ that the words
9D the sixth page, 'the fact is, we are ruled by
men oaly soUcitbus for their own agmndize-
menty and they care no farther for uie great
body of the people than they are subservient
to their accursea purposes, * were in the manu^
xripi wroU hy the dedanmt, but were not re-
pe^ed by him at the public meeting when on
the busting as above."

Now, this is the declaration of the panel, and
it must, as it will, be supported by other evi-
dence, before, as I have told you, it can have
full authority with you as establishing the &ct
j^ainst the prisoner. You will, therefore, ob-
serve, that in this declaration be admits, gene-
rally, that all the parts of his speech as given
in this printed paper, are accurate, with two
exceptions.

Ihe first exception is, that there is something
inaccurate in the words at the passage regard*
ing allegiance ; but he does not state, or allege,
in what particular these expressions are inac-
curate ; neither does he deny that they convey
the import of what he had delivered. And, no
doubt, there is an inaccuracy in the printed
account of this passage ; because, you will ob-
serve, that one monosyllable, of very great im-
port, is cautiously omitted, which, it is proved
Dy the rest of the evidence, beyond all doubt,
the prisoner actually employed. The word
*' heu^ is omitted altogether ; and while the
prisoner refrained from stating what words
were incorrectly given, I shovld be entitled to
infer that it consuted in this omission ; and, if
so, it is of no importance to the general result.
Indeed, itk enough for my purpose that he
admits general^ the accuracy and authenticity
of tbe pubUoOion ; because I have the means
of supporting the strong evidence afforded by
this general admission, by other testimony
which supplies whatever is wanting in his own
declaration.

The second exception which he makes is,
that some words, which are mentioned at the
end of ihe declaration, are printed, which he
did not deliver at the hustings ; but you wjU
observe, that he admits that those words were
in the copy of his speech which he gave to be
printed, and that he does not allege that he, at
any time, ever objected to the publisher, or to
. the committee, that his speech as delivered vras
not accurately given, but, on the contrary, that
he acquiesced, down to the hour of his emitting
this declaration, in its being the true and
fiur account of the speech he had miAe on that
occasion.

Let us now attend to tbe parole proof, by
which this declaration has been amply con-
firmed.

Of the two witnesses who were first examined,
jotthaveFinnie. who swears that the speech
' which he heard McLaren deliver on that occa-
sion contained, these words t ''We wUl lay/'

A. D. 1817.

L&4

or ** let us lay, our petitions at the fdot. of tbe
throne, where sits our august prince, whose
generous nature will incline his ear to hear the
cries of his people, which he is bound to do by
the constitutioiud laws of the country; and we
are thereby bound to give him our idlegiance :
But if be should be so infatuated as to turn a
deaf hear to the eeneral cries'* or ^ voice of
bis people, to hell with allegiance.*' That is
the express statement given by a person who
himself attended the meeting as a party, who
cannot be supposed to be very unfavourable to
the prisoners, and whose testimony, indeed, was
given in a way that must satisfy your minds he
did not intend to press the case mor« than it
would bear against either of them.

Next we have tbe witness Merrie, whT> ex>-
pressly swears (though his memory is not dis-
tinct as to the whole passage), that McLaren
made the first speech. He remembers the
words ** to hell with" or " for such alle-
giance.'' He says M'Laren '' wished the
people to address their . augnst sovereign, and
he meant their allegiance to him.** Then he re-
members the words, '* if he turned a deaf ear
to the voice of his people ;^' and after that came
the words ** to hell with allegiance."

Besides the testimonies I have now referred
you to, I might, if it were necessary, go over
the evidence of many more of tbe witnesses ;
but this must be superfluous. You will, how*'
ever, keep in remembrance the evidence of
Samson, who, when called back and examined
for the prisoners, deposed, that be attended the
meeting of the committee when the speeches
were given in for publieation 'by the aifferent
persons by whom they had been delivered at
the public meeting ; that M'Laren was present
at tnat meeting of the committee, and that
when be produced his manuscript, there was a
correction made on it by Batrd, which was
read to the meeting; and that the pencils
marking made by Baird were those Very words
I have referred to which are given in this
speech, and copied into the indictment which
is l^ng before vou. He states, that the words
which were added by Baird with the pencil
are, ^ which he is bound to do by the laws of
tbe country : But should be be so infatuated
as to turn a deaf ear to their just petition, he
has forfeited their allegiance. Yes, my fellow
countrymen, in such a case to hell with our
allegiance." These are the words which with
a pencil Baird added to M'Laren*s speech in
his own presence. Now why, I will ask, ac-
cording to the prisoner^ own friend Mr.
Samson, were they added } Why, because tbe
committee wished to give a true account of
what took place at tbe meeting, or, to use his
own words, ** because tbe manuscript delivered
in was not complete according to tbe way in
which the speech was delivered.*' The com-'
mittee did not wish to garble the proceedings,
but to give i^minnte, true and accurate account
of what happened ; and the passage therefore
was inserted. All this, you will remember,
took place in McLaren's presence ; and did he

55]

57 GEORGE III.

Trial ofAkxander M*Laren

LS6-

object to this .addition being made? No; on
the contraiy, he agreed that the passage should
remain there, because it was an accurate account
of what he had said* Some feeling of pro-
priety, no doubt^ prevented the committee from
putting in one word which had been used by
M'Laren, and there is a blank accordingly in
the printed paper; but the witnesses who
were examined fill up the word, and tell you
what is wanting. You have McLaren's ad-
mission, therefore, in his declaration, of the
general accuracy of the printed account of
hia speech; you have the parole proof;
you have this statement of Samson's; and
you have M'Laren*s virtual admission in the
committee, that these were the expressions he
used. It does, therefore, appear to me to be
unnecessary to go further in examining evidence
on this part of the subject. I think it is clear
that these words were used by M'Laren, and
that of this it is impossible you should doubt.
I may now, then, put the prisoner McLaren
aside altogether, in so far as the mere fact of
the speech having been delivered by him is
concerned ; and it is exclusively to that I am
speaking at present;

As to the prisoner Baird, we must also look
to the terms of his declaration. He declares,
*' ihat the 7th of December last was fixed for a
general meeting at the Dean-park : That ^e
declarant attended that meeting, and Alexander '
M'Laren, weaver in Kilmarnock, mounted the
l!iustlnffs,aQd opened the meeting vrith a speech :
That James Johnstone, muslin-agent in Kil-
marnock, was called to the chair, and read a
speech to the meeting from a memorandum-
book. And being shewn a manuscript con-
sisting of nineteen pa^es, declares. That he is
pretty certain that it is the same that he read
to the meeting, and which the declarant saw
some days afterwards in Walter Andrew's ofiibe,
and which is docqueted and signed as relative
hereto. Declares, 'fhat the proceedingi were
ordered to be printedy and the dedarant wot ap-
pointed by the committee^ along with $everal othen,
to gji^permtend the printing : That the dedaramt
atmted in correcting the grammatical erron in the
mdnuscriptf along with the said Walter Andrew,
and the declarant assisted a little at the printing
office in correcting the proof-copy : And being
shewn a half-sheet of paper, titled on the back,
** No. 5, Mr. Burt's letter," declares, That said
words are of the decIarant^s hand-writing, and
the said half-sheet of paper was given in by
the declarant to the printer, along with the rest
<>f the manuscripts, and said half-sheet of paper
is docqueted and signed by the declarant and
sherifl*-substitute as relative hereto. Declares,
That the proceedings of said meeting were
printed by Hugh Crawford, and a great number
of copies were tent to the dedarant't thop,andke
retaikd them at 4d. a piepeJ*

The result of this declaration seems to be,
that the prisoner admits that he was one of ^he
compaittee appointed to. superintend the pub-
lioation complaioedof— iha^he assisted in cor-
recting die manuscript to'Sft it for going to the

printing-house — that he did superintend the.
printing of it, assisting even in correcting the
press, and that a great number of copies
were sent to his shop which he retailed and
distributed.

Accordingly this admission, vrhich, I hare
said, is, in point of law, a strong circumstance
of evidence against the prisoner, is amply con-
firmed by the depositions of the witnesses, by
several of whom it has been proved that he at-
tended the meeting upon the 7th of December,
and that he heard tne speeches' contained in
this publication delivered or read by the per-
sons to whom they are attributed. By others
it has been proved, that he was one of the com-
mittee appointed to superintend the pubtica^
tion ; and by one of that committee it is estab-
lished, that m the matter of publication he took
a most active concern, perusing at least the
manuscript of some of the speeches as they
wete given in by the authors or reputed
authors; and tliat such was his vigilance,
in providing that none of the precious
matter which had come before the public
meeting should be lost, that the passage
which is chiefly complained of in the first
charge against M'Laren, having been omitted
in the manuscript, he himself took his pencil,
and, for the edincation of the public, to whom
the pamphlet viras addressed, actually wrote it
down on the press copy.

In like manner, you have it proved by
Murray, Mr. Crawford's journeyman, that
Baird attended at the office during the time
the publication was printing — ^that he examined
the first proof, and suggested at least one, it
not more corrections.

Again, as to the fact of pubUcatioii, it is
proved by the prisoner's shop-boy, aikd by the
vritness who bought a copy at his shop, as also
by one of the members of the committee
appointed to superintend t he publication, and
who delivered great numbers of the pamphlet
for the purpose of being sold and distributed,
that Baird was the principal hand by whom
this publication, be its ments or demerits whait
they may, was sent out upon the world.

When you consider this body of evidence,
therefore, I cannot entertain a doubt that you
must be clear that the fact of the publication
by Baird is incontrovertibly established.

Upon this part of the question, therefore,
I have only furlhet to remark, that there can
be as little ground for doubting, that the pri-
soner M'Ls^n, besides being bound to answer
for delivering the speech, whidi in this indict-
ment is charged with having been seditious,
must also answer for being an accessary to
printing and publishing the pamphlet upon the
table. The facts of his having given in the
manuscript copy of his own roeech fi)r the
purpose of being published, ana that he was m
nember of the committee of publicatioQ — facts
which are proved beyond all contradiction by
the witnesses io whom I have already refetree,
as virfll as by his own admission — can leave no
manner of doubt upon this subject.

5T3

and Thmat Bmrifor Sediiion.

JLJX mi.

[Aft

I Kp^frAaoAf iher^any that yon mitt now t
concur with me in bolding it to be ettablished [
by the proof, 1sl» That McLaren detirered at I
the jmbUc meetiog that speech, of which parts
are quoted in the indictment ; 2ndly, That the
puMication porportinf to be ** Account of the
proeeedings of the public meeting of the Bur-
gesses and Inhabitants of the Town of KiU
maiuock, held on the 7tb of December 1816"
&e. was printed and published by the prisoner
l^iidy who was active in its sale and aistribn-
tion ; and, drdly. That the prisoner McLaren
was also an accessary to the fact of pnblica*
tion.

Upon this part df tfie case, therefore, which
mnst in fact form the foundation of the opinion
which yon aie to make up, and of the verdict
yon are to retnm, there neithercan be any groond
of difference between my friends on the oppo*
site side of the bar and myself, nor, I am con-
fident, can there be a vestige of doubt in your
minds.

But that part of the case which requires
yonr utmost deliberation still remains to be
considered. In the commencement of the trial
you heard an admission upon my part, that it
would be competent for the prisoners, not only
to dispute the truth of the facts charged in the
indibonent, but to plead to you, that suppos-
ing those &cts were brought home to both of
them, the speech and publication in question
did not amount to the crime of sedition. To
that admissiott I still most heartily adhere. It
has always been in this country, and I trust
always will be, the province of the jury, in
every question of this description, to 6nd in
Aeir verdict, whetherthere was a criminal iiiten<»
tioo entertained by the prisoneis-^whetber a
crime has been committed or not—and whether
that crime amounta to sedition.

In order to enable you, therefore, to make
up your opinions upon this subject, had it not
been for tne deliberate judgments of the Court
which you had an opportunity of hearing at the |
commencement of the trial, it might have been
expected of me to enter into some details of
the history and of the nature of this offence, —
one of the most various and comprehensive,
and at the same time one of the most danserous
and flagitious known to the law of Scotland. But
as you heard the unanimous opinion of their
lordships, that the allegations contained in this
indictment, if established against the prisoners,
would amount to the crime of sedition, I shall
confine myself to such a statement of ihe sub-
ject as is barely requisite for enabling you to
Mlow the oondusions which I find it mj duty
to draw from the particttlar passages m this
publication urtuch 1 have been called upon to
bring under your eoneidemtion.

Seditiim, Gentlemen^ is a crime by the com-
monkw of Scotland; and it has been laid
down by our writers, and by Ihe decisions ef
this court, that it readies- to practices ;of every
description, whether by deed> word, orwiitinR,
which^tfecaSeulatedand'iBMnded to distuA)
the Iranquilli^ trf the state, by exciting disaf*

footionlD the ttindfrof the people against the
established government of the country, to pro-
duce resistance to its authority, or to lead to
its ultimate subversioo. -

Allow me, however, to guard myself against
misconstruction as to the use of the terms,
** the established Government,'' which I have
now em]d(^ed. By those terms, you will not
by any means uhderstand that I refjer to that
which, in ordinary parianoe, is commonly so
termed, I mean his majnty's nunisten. You
need not be told that it is competent and law-
fed for the subjects of this realm to canyass all
the measures of his majesty's ministers,— ^o
state that they are contrary to law, and to the
interests of the country ; — ^that their prooaed*
ings should be interrupted, and the autliors of
them dismissed from office : in talking, thsire*
fore, of raising disaffection to his majesty's
government, you will understand that I do not
mean exciting disaffection to his majesty's m^
nisters. Far be it from me to contend th«t
this is against law, or that courts of law ought
to interfere to punish practices, words,, or writ*^
ings, calculated to produce that effect. Bot
by the established government, I mean the
constittttion of King, Lords, and Commons, as
established at the period of the glorious Revo*
kition of 1688 ; and, in this sense of the term^
I state to you, that any thing which tmds to
produce public trouble or commotion,*— any
thing which moves his msjesty's snlgects to the
dislike, subversion, or distuibaace of hu ma»
jesty's government, amounts to the crime of
sedition. Any speech or writing that is calott*
hued, and intended to vilify and traduce Um
sovereign in his capacity of Head of the State^
or aa a branch of the legislature— any speech or
writing calculated and intended to vilify and
traduce the House of Peers^^ny speech o
writing calculated and intended to vilify th(
House of Commons, stating, for instanee, that
it is not the House of Commons, that it is
the mere nominal and pretended repre^
sentative of the people, and does not repre«
sent them, — ^tbat it has become corrupt;-**
writings or speeches inculcating all, or any of
those things, fall under the crime of sedinon.
In like manner, either a speech Or a writing
exhorting the people to throw off their allegi-
ance, under any particular contingency which
may arise from any one branch of the Isgislap-
ture either doing an act, or refusing to do an
act, which may, or may not be within its par-
ticular competency, will amount to the crane
of sedition.

Allow me, also, to observe to you, that in
all cases of this description, the time when the
particular act complained of is committed, the
state of public ofttiiion, and the political rein*
tsons of the country, internal or external, wiU
often be essential to the constitutidn of the of*
fence. For instance, to use am illustration that
I believe was given by an eminent person, who,
in the year 1795, held t])e situation which my

I' -honourable friend near me now holds. Had,
in the year 1745, any niunberof iadiriduaa^

89]

57 GEORGE UI.

qfAlumiitr. htJLttttn

i90

lKvw^T«r fewy with whke OM^ato id tMr
faats^ tnd moflkets Id their huids, repiired to
ili6 Castle-hill, ahovtiDg out the name of the
Pretender^ they would have heen guilty da
trime probably not fhort of the highest that
could be committed against the state; but were
the same act to be done new, they could be
legaided in no other light tluun as madmen.
Various other illustrations of a similar nature
might be sUted, but I deem it sufficient for me
Co submit to you generallyy as being dear law,
that if at any time publications or speeches
are oompkined of as seditious, it will always
be of im]>ortance to consider the state of ^e
public mind at the period the act alleged tp
constitute the prime has been committed, in
Older duly to appreciate their nature and im*
port With this view, and before concluding,
It will be my province to submit to you, in a
sinsle sentence, that the state of the country
«t me time when this publication issued from
the press, and when the spcm^ was dehrerad
by McLaren at the public meeting, must enter
deeply into your consideration in forming your
veraict upon this indictment.

Upon this subject I have only farther to state
that the crime of sedition is one ¥rhidi tUs
court, and the law of this country, has viewed
as one of the hi|^est and most flaoitious de«
scription. Its object is to introduce dissention,
trouVlesy and bloodshed into the kingdom, —
to subvert the laws, and to dissolve the bonds
of society. It is the duty of government, therfr-
fore, to resist and extinguish it in ihe veiy outset ;
and if, in the present instance, I have any
thing to regret, it is that this, and perhaps
other cases of a similar description, have not
been brought sooner before a Jury of the
conntry.

We come now to consider whether the terms
of the speech, ts deliversd at the meeting by
McLaren, or the terms of that speech and of
the other speeches in the publication after-
wards given to the worid by the prisoneis,
amount to the dme of sedition, according to the
description of that offence which I have now
had the honour of giving you.

And first, as to the speech. In it you will
recollect, that McLaren stated, ** That our su^
feringsare insupportable is demonstrated to
the world; and tnat they are neither tempo-
rary, nor occasioned by a transition from '' war
to peace," is palpable to all, though all have
not the courage to avow it. The &ct is, we
are mled by men only solicitous for their own
aggrandizement, and they care no furtiber for
the great body of the people than Uiey are sub-
servient to tlieir aceuised purposes.^
• In this passage the term rulers, you will ob-
serve, is employed; and this, it may be said,
applies to his majesty's ministers, and notto the
^vemment in the more comprehensive mean-
ing of the phrase; but it does no such. thing.
There is no limitation, you will remark, intro-
duced by the speaker. Even taking the term
generally, and in its extensive sense, undoqht-
,cdly it oompieheads ^e wliole order of our

Omremon^ -^King» Loidi and Covunons : but
in an afiier part of the speech^ it is explained
that this last is actuallj^ the sense in which it
was employed, llie statement therefore is,
that the King, Lords and Commons, are cor-
rupt;—that they are solicitous only for their
oWn aggrandizement ; that they care no further
for the body of the people, than as th^ are
subservient to their accursed purposes. Now,
I ttk, is not this statement calcniated to bring
the government into contempt, and to excite
disaffection to the established order of things ?
Does it not tell the people, that they have no
interest whatever in the stability of the state;
and is it not odculated immediately to lead to
disturbance and commotion? It is for you,
gentlemen, to answer the question, and it seems
to me impossible to doubt that that answer
must be in the affiimative.

But In this passage allusion ia made to the
distresses of the people, and these are made
the instrument for giving greater effect to this
seditious libel upon the rulers of the country.
This^you cannot doubt, enhances the crime of
the prisoner, by having employed that under
which his hearers were suffering, and which ho
must have known their rulers could not re-
move, as an engine for promoting the disaffec*
tion he was endeavouring to excite. God
knows, that I by no means wish to under-rsite
the distresses .which the persons attending that
meeting were labouring under in common with
their brethem in different parts of the coun*
trv* No one who was at that meeting, no one
who hears me now, can be more sensible of
the great distress which the lower ranks in this
country have suffered, and none can more
deeply deplore it than I do. While, however,
I folly appreciate the extent of those distresses,
and applaud the patience with which they
have been endured, I can only urge the use
which is made of them in the passage I hare
read, as tending to prove the wicked and mar
lidous intention of the prisoners, who could
have had no other object in referring to them
tnan to excite disaffection and sedition*

The prisoner's speech then goes on to states
''If you are convinced of this, my country-
men, I would therefore put the question, Are
you degenerate enough to bear it t Shall we,
whose forefiithers set limits to the all-grasping
power of Rome ; Shall we, whose forefathers,
at the never-to-be-forgotten field of BannodL-
bum, toki the mighty Edward, at the head of
the most mighty army ever trode on Britain's
soil, 'Hitherto shalt thou come and no fur^
ther;' — Shall we, I say, whose forefathers de«
fied the efforts of foreign tyranny to enslave
our beloved countryy meanly permit, in our
day, without a murmur, a base Oligarchy to
feed their filthy vermin on our vitals, and rule
us u they will 7"

« Upon this passage I shall merely say, that
you have heard the only comment which I
think it can foiriy admit o^ put upon 4t in the
judgment of one of their lordships* in the

- , -■ - ' -^ ^ . — « -.

* loid Reston; ^ds^ mUj p. 16. •

lui flkmat Bamtjor SeikioM.

A. D. ItlT.

[ds

eaily port of this tml, * Ton most be satisfied
thai the object of the orator here it, to reoom-
mend resistance, and to encourage it by calling
to the leootiection of his hearers the popular
allusion to the batde of Bannockbum: Ac-
cordingly he goes on to state that which must
leaTc Jl donbt of his intention in this passage
out of the question, ^ Let us laj our petitions
at the foot of the Throne, where sits our ao-

r Prince, whose gracious nature will incline
ear to listen to the cries of his people,
which he is bound to do by the laws of the
country. But should he be so infiituated as
to turn a deaf ear to their just petition, he has
forfeited their allegiance. Yes, my fellow
townsmen, in such a case, to hell with our
allegiance.^

In Older felly to understand the seditious
import of this passage, it must be taken in
connection with that which I previously com-
mented on, and a passage in the resolutions
of die meeting, which I am fairly entitled,
under all the circumstanees of the case, to
tabs as part of McLaren's speech. In page
36 of &e publication, it is stated, ^Bemg
therefore impressed with the truth of these re-
solutions, the meeting resolve to present peti-
tions to his Royal Hif^ness the Pnnoe Regent,
and to both Houses of Parliament, requesting
his Royal Highness, in particular, to assemble
Pariiament without delay ; to call upon it im*
mediatdy to adopt such measures as mav tend
to restore to the people their undoubted right
in the representation ; to order, in the name
of the people, an immediate reduction of the
taxes, and the standing amy,^* the abolition of
all unmerited pensions, sinecures, grants, and
other emoluments, as the surest way of esta-
bfishing, on a firm and lasting basis, the rights
of the Crown, and the privileges of the peo-
ple : And that, in all time coming, no person
who has an office or place of profit unaer the,
ISiogf ^ receives a pension from the Crown,
shall be capiMe of serving as a member of
die House ca C<»nmoos."

Now, the meaning of all this taken toother
is, that unless the Prince Re^^t shall carder
the Pariiament to reduce the taxes |nd the
standing army, and to do all the tnings
which are there enumerated, he has forfeited
our allegiance, and that the allegiance of the
meeting is to be thrown oif, and to be sent to
hdl. fiat, you are not to be told that the
Prince Regent hasno such power that —

Mr. Clerk, — ^That is not the meaning of the

r.— If my interpretation of the
pamage is wrong, my leamed'ftiends will after-
wards hatve the meant of correcting me. It
would be better if at piesent th^ would re-
frain from intemipting me. In n^ view, it
deariy impofts the meaning wfaidi I have du%
upon it. The Prince Regent is to amemVle
me FMament, and to call upon it to leitora
fo the people tifcir n^gbt of repnseatation;
b«t^ in the seeond place, he is to order aU the

otfier things to be done by the IMisnen^
which it is not within his oooapetence to do, ,
or he is to order them to be done of his owik
authority; and if he does not do so^ then what
is the penalty ? No less than the forfeiture of
our allegiance, and, as he says, ^in that ease,
to hell with our allegiance.'^ Here, then, Oea-
tlemen, the miseraUe and distrMsed people, -
goaded by their privations and afilictiona, who
were surrounding the prisoner, were in this
speech excited to make demmids upon the
Sovereiffu and the Legislature, iHiich, if they
were renised,no less a result was to fellow than
the forfeiture and throwing oif of their atte*
giance.

Now all this I state to yon to infer the crime
of sedition. It was sedition to alienate the
afihctions of the people from the Government,
in the manner which was /done in the first part
of tho speedi. It was sedition to tell the
meeting, in the second part of it, that if the
diffsrent reforms there called for were net
granted, and if the evils complained of were
not removed, their allegiance was forfeited, and
to exhort them in sodk a case to throw it of.
The next point for consideration is the pub-
lieation itself. But here I am saved repeating
the commentary upon one part of that pro-
duction, the speech of Mlaren; fer it must
be manifest to you, that if the speech when
delivered was seditions, it cannot be less so
when reduced into the form of a publication ;
and every tfaing^, with one exception, which
wu ddivered vha voce, is to be found in the
printed report. There is a blank before alle-
gianeey-~the word ^keW is left out. It is
your province^ however, to fill up that blank.
And, after the evidence laid before you this '
dajr, you oan have no difficultv upon this
point. You heard that one of the prisoneii,
in the presence of the other, wrote out the
vrhole- of the passage upon the manuscript
when preparing Uf or the press. The propria^
of inserting the passage wu afterwaids die-
cussed, and doubts were entertained upon the
subject by the committee. With the feet of
that passaae beingaotnally in the hand-writtns
of Baird, looking him in the fruie, my learned
finend (Mr. Grant), rather strangely in my op»-
nion, pressed upon his witnesses to prove that
Baird, in particular, was awave of the indeoeney
of its character; for, under such circumslaiices»
the fact of pubUottion only made his o^
fence the* greater. Aecoffdiai^y, it is proved ,
to you^^iat the prisoner, whether convinced of
its indeoency-or not, still he^ the publisher and
coneotorof the press, sends it to be printed;
and out it eomes with the word only left blanky
affinding,! should think. Id your oonvictioB,
the fellMt and most complete evidence of his
guilt

But let us proceed Id ooosider the other
parts ti the publication. In pa^e 3, of the
mdietmant there is this passage : ** But let us
cone nearer home: look at the year t79l»
when the debt amounted to two hundred and
fkifm nHlionB, and the annual taxation to

631

£7 GEOBQE m.

Trid i^jU$iMmdvr M'Laam

abcml MgbtMii mUiaiii; mhea liberty began
to rear her dioopine head in the eountry ; when
asaooiatiooa were rormed from one end of the
kingdom to another, oompoeed of men eminent
for their talents and virtne, to assert their
rights; when a neighbouring nation had jost
tltfown off a yoke which was become intoler-
able,— ^What did the wise ralers of this coun-
try do? Why they declared war, not only

been nnblusbini^jraElftimpied to be justified Jliy
reason ef its avowed fr^ueacy and notoriety.
The meeting, therefore, haTB no hesitation
in asserting, the debt can never be said to be
national, nor the present taxation just^ seeing
the fonner has been contracted by men who
do not represent the country, and the latter
raised 'without consent of the tait-payer ; and
it is contrary to the laws and constitution cf '

against tlie French nation, but also against the- t^iis and every free country, that no man can

- friends of liber^ at home."

No¥K, I think it is impossible for you to read
this passage, without Ming of opimon that its
object was, to impress on the minds of the pub-
lic an admiration of the proceedings ox the
French nation (polluted lis it was at the time

• by treason, by blood, and by crime of evety
description which it ever entered into the mind
of man to conceive),— and of those who were

•termed "the Friends of Liberty at home" in
the year 1793, its imitators and admirers >— to
hold out that the sssooiations of that peripd
were formed for the purposes of promoting
liberty,, but which all of you know it was de-
cided by Jurymen sitting in that box where
you «r9 now placed,-^orymen to whose in-
telligence and vigour the gratitude of this
coniltry must be for ever due, — that they were
formed for the purpose o£ exciting disaffection
to the government, of introducing turbulence
and -commotion, and of overturning the Con-
ttitntion. In short, the object of the publica-
tion was to call upon the people to imitate
what was so worthy of aomiration; and it
would be wasting' time to persuade you, that
if this was the ol^ect, one of a more seditious
description, when tsken in conjunction with
•the other passages in- the publicaticm which I
•have: already emkI, or am now to read, cannot
be conceived.

The publication then proceeds in direct
terms to state, ^'tfaatthe House of Commons
is not realty what it is called,— it it noi a
Boute ofCammoiu." And hem it is necessary
for me to* read several passages to you, in order
to prove the seditious nature of the publica-
tion, and which I shall do wiliiout commen-
tary, beekuse I am persuaded, that nothing
ihat lean add. could «arry thejconviction more
strongly to* your minds of its pernicious sud
^minei import tiian the very sentences them-
' selves which i am to bring under your oonri-
deradon.

In page 38 of the publication you will find
it stated, ** that the debt, now amounting to
nearly 1000 millions, has been contracted in
the prosecution of unjust and unnecessary

• wars, by a corrupt administration, uniformly
'Supported by a llonse of Commons^ whicd

- cannot be said, with any justice, to be a fiur
and equal representation of the country, but
which for the most part is composed of men

means, have contrived to return a majoci^ of
members of that House ;<-« &ct which has not
only*beeu:a(teitted on aU hands, but whtchhas

be taxed but with his own consent, or ^ith
the consent of his agent or representative.*'

Again at page 35, there is the following
passage : ** We have these twenty-five years
been oondenmed to incessant and unparalleled
slavery by a usurped oligarchy, who pretend
to be our Guardiant and RepresaUatwa, while,
in fact, they are nothing but our ir^lejnUe,and
determined enemiet. But happy, happy am I
to thinks that you have met this day to declare,
' that you will suffer yourselves no longer to
' be imposed upc^." And a little lower down
it is stated in express terms : '' At present
we have no rmeientativet ; they are onty
fiomtno/, not reoi; active only in prosecuting
their own designs, and at the same time telling
us that they are agreeable to our wishes."
And again, at page 38, '' A set of pensioned
seat-buyers in the House of Commons have
deprived you of all your rights and privileges.
They hold both emoluments and seats in that
house, contrary to the express precept of our
glorious constitution, which says, * that no
person holding any emolument can have a seat
m the House of Commons.' Our constitution
also allows parliaments only to be of one year's
duration, and that they are to be chosen an-
nually by the people ; but they have elected
themselves, and by their own assumed and
arbitrary juithority have made parliaments,
first, of three years, then of seven years dura-
tion ; and with the same lawless power they
may make them perpetual. Alarming to ref-
late, they have disregarded our constitution,
they have scoffed at her equitable precepts,
they have trampled her and her sons under
their foet; I would now ask you where is your
freedom ? Where is your liberty ? When we
reflect on such usage, it is enough to excite us
with ungovernable indignation. They are, re-
cording to our glorious constitution, culpable
of treason, and justly merit its reward. Will
a nation which has been so long famed for its
liberty and heroism, suffer itseV to be duped
any longer by a gang of impostors? No, it
will not The unanimity of our sentiments
and exertions, agreeably to the constitution,
will once more dispel the doud which eclipses
the resplendent and animating rays of liberty ;
and will again make her sl^ne forth in this onoe
happy country with unimpeded eflhlgence.'*

In order to remedy all this, universal sof-

put in by a borough faction, who have nsofped ^frageandannual filaments are recommended-
the rights of • the people, and who, by undue

Thus the publication states, (page 10.)-: *^ The
House of Commans, in its original compoas*
tion, consisted only of commoners, chosen
a»mia% by tie umiarial miffhuge qf tie people.

fliMt i%9mai Bmdjwt Smlkiutt.

A. }J. 1917

4»

No ' noUtmiv no dtiigmaBy do natal or
tMlitary officer^ in sbort, none who bald pUoa^
or receiTed pe9$umtjrcm govemmaUf bad aoj
rigbt to sit io that House. This is what the
House of Conunons was, what it ought to
be^ and what we wish it to be. This is the
wanted change in our form of gOTernment,-*
the Commons House of Parliament restored to
kM ofiginal purity ; and this, beyond a doubt,
wouJd strike at the root of the greatest part of
the evils we g[foan under at the present day.''
At page 34. it state% " that the only effeotunl
■Mans that can be adopted to relieve the nation
in some measure from its present distresses^
are, l^ Testoringibeimpreacriptible rights of the
nauooyby a remrm in the representation of the
people in the House of Commons, aod by an*
Bual partiaments; imd until the$e tike pUwej tk$
fteple ctM e»i€riam no mamuibU txptiuUum ^
ever kmiag tkur eondUion mpraoed, But»
aiiould tbeso salutary measures be adopted,
they are confident that such a Parliament would
always act for the good of the nation, and
ensure the leopeot, eonftdence^ and support
ef Ae whole body of the people. Ana it i$
not without justice that the meeting ascribe
to the want of a iair and equal representation
of the people in Parliament* all the wars^ and
their oonse<iueoces, in whid) the people has
been engaged for half a century past; for if,
at the commencement of the first Aroerieaa
war, this eoontry had been blessed with a
Hetiae ef Commons chosen by the free suf-
fiage of the tax-payers> would they have acted
eooiisteatly with the constitution of their own
body, to have gone to war with a people of
the uuae origin and language, merely to Ibroe
taxes upon them . without their consent ? Or
would tlicy have opposed 4he straggles of tbe
French nation, in endeavouring to obtain that
fteadom which eve^ Briton cherishes as liis
birth-eight ? And of ultimately forcing upon
them a haled Dynasty, oontrary to the wishes
of nine-tenths of the people ? The idea is
Inly preposteRMS." In page 26> they explain
whaift they mean by the ta>-pa]fen. " Consi*-
dering that of two millions of inhabitants^
only 2f700 have a rigbt of voting for Membeia
ef FarliasBenC, the remaining 1,997,360, al-
though tax-payers, directly, or indirectly, hav-
ing no more right of voting, than if thej were
an impertation of Slaves from Africa."

After going through all this long detail of
giievflaces^ you will recolleoty that unless the
aeiNaia e^led for are granted, and the evils
eempleined of are redrmed, the people were
told that theic allegiance was to bo thrown off;
•■d If allegiaaoe be thrown off, rel^Uion must
lettew. ne lesult, therefore, of the whole
tbat I have lead ii, that .as the condition of
tbe pee|>le never ecmld be improved till uni*
▼esaal suffrage and annual parliaments were
obtained, so unless all this was granted, resist
■use must be iaade» and insurrection against
the Oovemmeot and the laws must be the
eeneequence. But you know that in this
coumnr, to reaiit, tBuM UDSvMd suffrage be

voL xxxm.

obtained iS/ in pther words, to reaist until the
British constitution be fuudamentally over*
thrown.

I am not now prepared, — and it would be
out of place for me, — to enter at leogth vpon
this important subject, on which so many per^
sons have been so gross^ deluded, finl I
cannot avoid pointing out, in a few sentences,
that at no one period, either in England or
Scotland, did universal suffrage ever prevail ;
and in Scotland, in particular, from the great sub-
division of property, the elective suffrage was
never so extenaed as it actually is at the pre-
sent moment. It is matter of notoriety, that
the history of the British constitution is to be
found in the feudal system, and that the con-
stitution of Parliament in particular, while k
sprung out of that system, has ever retained
features which strongly mark its descent. Tbe
immediate vassals of the crown, the great
Barons who held of the King ^* in ca^^^ were
the first members of Parliament. Originally
there were no persons who possessed seats in
Pariiament as representatives of others; nor
were any such introduced into the Legislature
until the great estates, to which tbf duty of
attendance in Parliament was incident, having
been divided, and that duty had actinJly be#
come a burthen upon the small proprietors,
the foundation of the representative system
was thus naturally laid. The first step in Uie
progress which seems to have been made was
this, that charters of exemption from Parlia-
ment were frequently solicited and obtained,
but those were declared to be illegal. Acoord-
ii^S^y* it would seem next to have grown by
degrees Into a law to oblige the great barone
only to attend in person, and to permit the
lesser to attend by their representatives. This
is in truth no mattei of conjecture ; for by c
statute of our Parliament, passed in 1427, the
smaller barons were excused fifom coming to
Parliament piovided they sent oommissioneit
from tbe shires.

In like manner, it i# proved l^y the intro*'
duction io the laws of Robert III., that those
burglis alone which held property tn f^^ of
the crown, had the right of being represented
in Pariiament It is, therefore^ a delusion to
state, that universal suffrage ever made part
of our constitution, or indeed that the right of
the elective suffrage waa ever broader or more
extensive than at present. In foot, I know ef
no country in which universal suffrage, or any
thing hke it, ever existed, but one, and that
was France in the year 1793. At that period,
no doubt, there was an assembly elected by
Bometbing like universal suffrage, and what
was the result? The degradation of the no-
bility,— the dethronement and murder of the
Sovereign,— the overthrow of the chuRh,^and
the extinction of religion. Is it those things
that these prisoners would recommend! I
have already told you, that liber^r, as it waa
practised in France in 1793, has been held up
ny them as an object of admiration ; and tf
you look to what is sUted in the gdd page
F

iB7l

57 GEORGB HI.

Ttiat tf AUxmder M*Larat

of their pubUcatioD^ tott will fiod, that while
they hola up to reprobatioo the higher orders
of the State, the revolutionary &te of the
€hurch does not seem to have been altogether
out of their contemplation. *< Their reverend
hirelings,^* say they, ''would convince you that
you are suffering under the visitation of the
Almighty, and therefore that you ougjht to be
submissive to the chastening stroke.** This
allusion has a direct application to the esta-
IMisbed church, — ^its object is not more to dis-
suade the people from submission under their
distresses than to bring the clergy and religion
into contempt. It is to tell the people, that
while their rulers were corrupt ana oppressing
them, the ministers of religion were not less
base nop more worthy of consideration'.

But while liie peophs are thus told in plain
bnguage to throw off their allegiance,— while
they are urged on to resistance to the exe-
cutive government, — ^to overthrow the Legis-
lature, and degrade the ministers of religion,
the publication proceeds Ho hold out the most
direct encouragement to rebellion. Look to
the passage about the army in pace 32.
''Your infatuated oppressors may harden
themselves against your requests; they may
consider themselves as fortified behind a
veteran army, which, they may imagine, will
be always ready to support them, though in an
unjust cause^ and by wnich they may conceive
it possible to awe a nation into silence and
submission. But let them recollect that the
army is still composed of men and of BrUom^
And shall they — though they have exerted
their valour in the cause of fanaticism, —
though they have been led to fight the battles
of oppressors, and establish the thrones of
tyrants ; shall they, in violation of the privi-
leges of freemen^ — forgetful of the glory [of
their country, — ^forgetful of all that is dear to
themselves,— contemptuous of all that they
Ibve, and regardless of the fete of posterity,
— shall they turn their arms to destroy the
constitution of their cx»untry ? What 1 after
displaying such feats of valour that has immor*
talised them for ever,— will they stoop so low
as to become instrumental in thetuin of their
country, fot. the sake of a faction which has
oast a deep shade of disgrace over all the
splendour of their victorious achievements?
I appeal to the army itself for a reply. I hear
h burst like thunder from man to man, from
line to line, from camp to camp, — No I Never I
Never ! We fight not for the destruction, but
for the preservation of the rights and privi-
leges of our beloved country 1*^

You will please here to remember, that you
are told, in the outset of the publication, that
under the eireumstances stated, allegiance has
become forfeited, and is to be thrown off; but
in the passage I have just read, as if the
readers might have the army in view to restrain
their patriotic fury, their fears are removed,
and they are encouraged with the hope^ that
the army will not fight against them, but will
'^u ^d co-operate with their projects of in-

surrection. Can any thing more insidioiis,^'
any thing more wicfced, — any thing more sedi-*
tious be conceived or imagined f I vrill fairly
teMyou, that, in my opinion, no pubticatioa
has ever been^ brought before this court of a
more vricked and pernicious tendency, none
better calculated to produce turbulence and
commotion, than that which I have read to you.

Look to the publication for which Palmer*
was tried at the circuit court at Perth in the
year 1793; and was tntosported to Boixay
bay; and although these times ai% not of a
description to render it necessaiy to inflict the
same degree of punishment upon the prisoners
as was awarded in that case, ^ere is not any
thing in it nearly so inflammatory, so sedittooa,
tending so much to excite discontent against
the government, or to introduce turbulence
and commotion, as there is in the paper which
is this day brought under your consideration.

That paper I think it my duty to read toyoti
from the records of the court. It is in these
terms:

'• Friends and feIlow-citisen9;^You, who
by your loyal and steady conduct, in these
days of adversity, have shown that you are
worthy of, at least, some small portion of
liberty, unto you we address oor language and
tell our fears.

^ In spite of the virulent scandal, or mali*
cious efiorts of the people's enemies, we will
tell you whole truths ; they are of a kind to
alarm and arouse you out of your lethargy.
That portion of liberty you once enjoyed is fast
setting, we fear, in the darkness ot despotism
and tyranny! Too soon, perhaps, you who
were the world's envy, as possessed of some
small portion of liberty, will' be sunk in the
deptb of slavery and misery, if yotr prevent it
not by your w^l-timed efforts.

** Is not every new day adding a new Unk
to our chains ? Is not the executive branch
daily seizing new, unprecedented, and unwar-
rantable powers P Has not the House of Com-
mons (your only security from the evifa of
tyranny and aristocracy) joined the coalitioa
against you? Is the electioti of its members
either fair, free, or frequent ? Is not its inde-
pendence gone, while it is made up of pennons
and placemen !

** We have done onr duty, and are deter-
mined to keep our posts, ever ready to assert
our just rights and privileges as men, the chief
of which we account the right of ilniversaA
suffrage in the choice of tliose who serve ia the
Commons House of Parliament, and afirequcnt
renewal of such power.

** We are not deterred or disappointed, by
the decision of the House of Commons coa-
eeming our petition. It is a question we did
not expect (though founded on truth and rea*
son) would be supported by superior numbers.
— Far from being discouragea, inre are more
and more convinced that nothiag can save this
nation from ruin, and give to the people that

• 3 iiow« Mod. St. TV. 237.

mMi namat Btirdjw Stdilm.

A. D. 1817.

17«

Iw^pptneaM wlud^ tli^ liare a right to look for
vxXex govenmieBty tet a refonn in the House
of Omudods, fiHiiKied apon the eternal basis
of juatioey faiz^ fiee, ana equal.

« Felloir-citiiena; — The time is now come,
when y9m ammi either gather roond the fabric
of ]ibcr^4o •uppori it, or, to jour eternal in-
iumjt let U &U to the ground, to rise no more,
huiiivg along with it every thing that is vala-
aUe and dear to an enligbtened people.

** You' are plunged into a war bj-a wicked
ministrj and a eompliant pa^iament, who seem
caielesa and unconoemed for your interest,
the end and deaign of which is almost too
horrid to lelale, ue destruction of a whole
people merely hecanne th^ will be free.

^ ^ it your eoaunerce is sore czan^d and
almost mined. Thooaands and ten thousands
ofyow fellovF-dtizena, from being in estate
ef prasperi^, are reduced to a state of poverty,
au8eijr> and wretchedness. — A list of bank*
lupleieiy ^ineqnalled in any former times,
fionns a part in the retinue of this Quixotic
expedition ; your taxes, great and burthen-
some as -they are, must soon be greatly aug-
mented; your treasure is wasting fast; the
blood of your brethren is pouring out, and all
this to fonn chains for a free people, and
eventually to rivet them £qt ever on yourselves.
^ To the loea of the invaluable ri^its and
privileges which our fstther's enjoyed, we im-
pute tUs barbarous and calamitous war, our
ruinous and still-growing taxation, and all
the wyyt"— and oppressiops which we labour
under.

^ Fellow-eitizens ; — ^The friends of liberty
call upon j<»9 by all that is dear and worthy
of possessing as men ; by your own oppres-
sions; by the miseries and sorrows of your
suffering brethren; by all that you dread; 1>y
the sweet lemembrance of your patriotic an-
eestois; and by all that your posterity have a
ri^t to expect from yon, — to join us in our
exertions for the preservation of our perishinff
libnty, and the recovery of onr long lost rights.^'
Gentlemen, this is the publication which
was held by a jury in 1793 to be a seditious
libel; and 1 ask you, whether from the be-
ginning to the end of it there is anv thing
more offensive, any thing more calculated to
alienate the minds of his majesty's subjects
fern the government and constitution of the
country, any thing better imagined for leading
the people to the use of physical force and to
open reoeUion, than is to be found in almost
every passage of. the publication lying on the
table f Sure I am, that there is not to be
found from the beginning to tlie end of
Palmei^s Address, a direct recommendation
to the people to thow off their allegiance, —
that there is no incitement to actual rebellion
— that there is no encouragement held out to
the people,. that if thejf rose to enforce the ac-
compliAment of their purposes, the army
would ioin them. But in the pamphlet upon
your iMe, all this is done in the most plain
and direct texms. The House of Commons is

said to be corrupt, and not to be the represen-
tative of the people : the whole rulers of the
country are stated to be corrupt, and while
guihv of the most gross oppressions on the
people, caring for nothing but their own base,
soroid, and tyrannical purposes. The clergy
are said to be hirelings, mlsely deluding the
people with the notion of their distresses ori-
ginating with Providence ; and while the
people are called upon to throw their alle-
giance to hell, they are encoumged with the
certain hope of Uie support of a brave and
victorious army.

It seems impossible in my mind, therefore,
to doubt, that if the publication in Palmer's
case was seditious, that now upon the table
can be otherwise ; that if the one merited
punishment, the other can be innocent. On
the contrary, I will tell you foirly, in my view
of the subject, the present is the worst of the
two.

It is now proper that I should tell yon, that
the same course of defence which has, been
pursued to-day, was followed in the case I
nave just been speaking of. In Palmer's case
it was said — ana we were told to-day that it
would be proved — ^that language similar to
that used in this publication had been em-'
ployed in petitions to the House of Commons,
without censure or animadversion ; that lan-
guage not less strong was employed by Mr;
Pitt, and l^ the duke of Richmond, and
various other statesmen; and the inference
which was drawn in the year 1793, and which,
I presume, will be drawn to-day, is, that it
was legal for Mr. Palmer in his case, and for
the prisoners in theirs, to employ the language
which those statesmen have made use of. But
my learned friend (Mr. Clerk), who was also
of counsel in the case of Psdmer/was told
then, and I beg leave to repeat it to you now,
that the ouestion before the jury and the court
was not how often the crime of sedition had
been committed, or how often it had been
committed with impunity : il was not whether
petitions containing seditious matter had been
presented to parliament, without the authors
being punished : it was not whether parlia-
ment had allowed seditious words to be used
in its own presence without animadversion.;
and, last of all, the question was not whether
the law officers of tlie Crown had allowed
their duties to sleep, and passed over sedition
witjiiout bringing prosecutions : but the ques-
tion simply was then, as it is now, whether
the crime attributed to the prisoners at the bar
amounted in law to sedition, and whether, if
it did, they were guilty of having committed
it. If it were proved, that five thousand
petitions containing language eoually strong
as that found in this publication, had been re-
ceived by parliament, or that the House of
Commons nad permitted language ten times
stronger to be used in their own presence,
that can never establish that the prisoners have
not been guilty of the crime of sedition charged
in thb indictment. The House of Commons

Tl]

S7 GfiORGB III.

Trial ofAiuandtr M'LmrM

C79

has no power df making or declaring law, or
of legalizing that which is oontrary to law. It
is but one branch of the legislature, and if it
permits language to be used reflecting on it-
self, on the Crown, or or the House of Lords,
which erery lawyer out of it holds to be sedi-
tious, which courts of law have found to be
seditious, that is no reason why the same lan-
guage, when employed out of doors with a
view to corrupt me minds of the king's aob-
j'ects, and to excite disaffection and commo-
tion, shaU not be repressed with the punish-
ment of sedition.

In the course of the statement with which
it has been my duty to trouble you, and which
I have put into as plain language as T could
employ, I had occasion to mention that in all
^ases of sedition the state of the times when
the act complained of has been committed is
to be maturely viewed and considered; that
what ma^r be innocently done at one period
may be highly criminal at another ; and that :
under one state of the country, language may '
be used, or a ^crriting published, with impunity, '
which, under another, would render the author
amenable to the arm of the law. Keeping this
in your minds, it is, I apprehend, impossible
for you to forget the period when the speech
in question was made, and the libel before you ;
was published. It has been proved, and I j
freely admit, that at the time when all this took '
place the' distresses of the country were not
only great, but that the misery of the lower
classes of the people had reached to an extent
seldom experienced in these realms. Those '
calamities, overwhelming as they were of them- \
selves, were, however, aggravated by this, that |
at the period in question they were converted,
^ all of you must recollect, into an engine for
jexciting discontent throughout the great body '
of the manufacturing population, who had then i
been thrown altogether out of employment. |
ITie most unprec^ented exertions were then '
cmplojred, by the circulation of inflammatory
and seditious tracts, to excite the minds of the
people against the settled order of things in the
country, wWle, with a malignity before utterly
unknown amoiig us, and having a precedent
only in the means that were employed for pre-
paring the people of France tor the direfol
event of the Revohition, a simultaneous ac-
tivity ivas employed in the dissemination of
immonfl, irrehinoitf and indecent works, to
subvert the religious principles and habits of
the people. No doubt public conventions, as
in 1793, were not held, because all things
which had then attracted the eyes of the police
and the administrators of the laws, and were
repressed by the Judgments of this court, were
carefully avoided. But a system no less dan-
gerous had then been adopted hi their stead.
That system was, to keep the whole population
of the country in a state of ferment, by con-
voking meeting after meeting in the different
manufacturing and populous districts, under
the pretence of petitioning parliament against
abnses. At thesa nreetingv, by the use of in*

flamm'atory language of oae 4escifpfioa or
another, the minds of the labouring dasses had
got into a state so unsettled, as to have become
prepared for violence of any kind, to which*
their leaders mi^t direct them. In some
quarters the e(re<Hs of thil system had become
iM. less tremendotts than those of its prede-
cessor in 1793. In others, its eoasequetieea
were even worse. We know the effects in
Glasgow. You have lately beard the fruta of
it in Manchester.

This situation of public aAnrs, which ia
matter of noj^riety, must entei- deeply iofto
your consideration in weighings the views and
intentions of the prisoners in committing those
acts which I have charged against them aa in-;
ferring the crime of sedition. But, indeed, of
the malignity of their intentions I think you
can have no doubt. It is impossible for 'm«y or
for you, to look into the minds of men, and to
discover what is die purpose at the bottom of
their hearu. . Tliat can only be galfaeied frosa
their actions. Now, if you consider the time
and the situation of the country when this
speech was delivered, and this pamphlet waa
published ; and if you weigh the terms of tint
speech, and the various passages of that work,
the whole of which will be before yon, wb4
which I trust you wiU seriously consider, it
seems to me impossible that you should hesitate
in forming a decided and clear opinion that
the purpose of the prisoners was to render the
people disaffected to the government, and to
excite them to acts of commotion and rebellion.
If such is your opinion, it is your duty to ftnd
the prisoners guilty. ,

No doubt they have been represented aa
persons of good character. Be it so. Witii
their character in general I have nothing todo^
and leave them every advantage they may have
upon this bmnch of the evidence. To myself
it appears, that what has been provfed of their
diaracters, however good in other respects, ia
against them in this case. In that point of
view^ I should state the evidence respecting
their characters to you, w;ere I to dwell upon
it,which, however, I shall reftain from doing.
Indeed I shall notice it no further, dian merely
to mention, as matter of curiosity, that evidence
of the same sort was brought forward and in*
sisted upon in the trials of 1 794 and 1794. In
fact, the defence in the present case seems
modelled upon those cases of a similar descrip-
tion that have gone before it, and will^ I trust,
meet with the same fate.

Having thus detained you at so great length,
I shall leave the case to you, perfectly satisned
with having done my duty in bringing it before
you. It appeared to me, after a full consid^
ration, to oe a case which could not be passed
over, as it was necessary to ptit Kmtts to the
circulation of the dangerous and sedttious pub-
lications diisseminating at present in every
quarter of the country. It is for you tK> say
upon the evidence, wnether my opinion has
been correct or not. I 'am satisned myself
fhMX my opinion is right, and that A« expies*

Jg\ Mi lUmmu HtM/W Btdkm. A. Du 1S17. [74

MOOS chMge^ ig Hit indicUaept wn seftlkwi ; bo Wntlon to eioite thsm lo NdiUoiiom-

«iid I hare had to-day tbe Mtufection to bear betlion, to any specMs ef viMance, or to asy

dMrt the court thtaks 90 likewise. You will unlawful act. They bad i»et with the fair and

mtterwaids learn their loidahifn' opinion opon legvU pnrpoae of petitiooiAg tho different

die endence, as you hare now heard mine, branehes of the legieiatttre for reKef min^t the

That I hare diooght H my dnty to fpre you grieranees of which they complained ; and in
plainly and witbont ramish. Bat clear though ! speaking of those grieranceSy the panel did

1 he on the whole case, I shall be satisfied with nothing more than assist in the prerloos de»

whatever rerdict yon may give, and I can hare liberations necessary to ascertain the riewe

no doubc the eonntry will be 90 likewise.

Mr. Clerk. — Gentlemen of the jnry, in the
kmg «nd able argument which yon have just
feea.Td, the lotd advocate has attempted to con*
Tinoe yoa that both of the prisoners at the bar

and wishes of the people assembled, as to the
natare of the applications that ongbt to be
made. This defimce, so important for the
panely was opened at the beginmng of the trial ;
tmt so far from attempting to refoteity the
lord advocate did not, in the course of bis vety

bave been guilty of the cnmes laid to their { long argument, so much as aHude to it : and
dMTge. I attend yon for one of them only, | yon wiU see that the indictment, unfairly sop*

Mr. If ^Laren^ and shall leaive the defence of
the other, Mr. Bain), to bis own connsd, Mr.
JeiVey, who is able to do the most ample justice
to Me client.

Mr. McLaren is aeeused of having made a
•editioQS harangue to thf people assembled at
« numerous meeting held in a field near Kil-
tnamod^ and of having afterwards caused his
•peedk to be printed, along with other speeches
«f a like tendency, as a pamphlet, which was
sold and distributed in that neighbourhood.

That Mr. McLaren was present, and spoke a
lew sentences a^ the public meeting already
nentipBed, is certainlv true; but I hope to
satisfy you, that considering Uie occasion and
.meumsunces under which it was delivered,
tihe speech (if speech it might be called) con*
tahied nothing seditious or otherwise criminiU.
As to the pubKcatbn of the pamphlet, Mr.
M'Laren had no concern with it, and knows
nothioff of it. There is no evidence that he
sosistcd in the printing or publication even of
that speedi whidi is said to have been spoken
%y himself; and certainly there is do pretence
Sot saying that he took a concern in the pub-
lication, nle, or distribution of the pamphlet.
X hope, theiefbre, that I may disencumber my-
self of this branch of the accusation, as not af-
/ectiog Mr. McLaren at allj and leave it, in so
fer as it may be thought to aff^t the other
panel, to the consideration of Mr. Jefi^y, who
win address you for him.

As to the criminality of the speech at the
public meeting, moch eloquence nas been em-
ployed, and some points, both in £ict and in
law, have been stmined to the utmost against
the panel, in declamatory comments on the
wickedness of hissupposed intention to blow up
the flames of sedition In die multitude, as well as
OB the supposed illegal and dangerous tendency
of his words, as being utteriv subversive of the
Bnrish constitution and of all good goveri^
meat Bat in making these violent and un-
charitable strictures, it wis forgotten that a
publii; meeting having been called for lawful
purposes, tiie occasion rendered it necessary
mt the oanel (who had been appointed to
open the business) should make some remariis
on the subject of public grievances. This is
Ins dcKxics* In addfcssisg the people, ha hod

pressing the object and purposes of the lawml
meeting at which the panel made his speech^
represents it, as well as the other speechet
there made, as seditious and inflammatory
bamngaes, uttered without the pretence of asy
fair or legal purpose. These cireumstances
are not a little eitraordinarr, if the publis
prosecutor rsally bad hopes of being soccessfU
m his charee. With such hopes he should
have argued the case as it stands upon the
evidence : he should have attempted to answer
the defence on the fact, or on the law, or ob
both ; whereas, by taking no notice of a ds>
fence tmquestionably relevant, he either held
it to be unanswerable, or intended to rely upe*
a doctrine (which can never be admitted, and
which, indeed, the lord advocate hisuelf did
not directly maintain), that occasion and cir*
cumstances can make no difl'erenoe as to the
criminality of words — ^thal the same words
must, if they are seditious on any ocoasioB,
be seditious on all occasions, without the Uaal
regard to the purpose or intent of the speaker.
But against such an absurdity it is UBBeecssaxy
to reason. Every one must allow that the
same words may be highly criminal, or alto-

S ether innocent, nay, absolutely rtqaired by
uty, according to the difierent situations is
which they may be uttered ; and on this ground
I maintain, that even if the words of the panel
could not have been spoken without criminaUty
in other situations, they were justifiable as
they were spoken to men assembled in delibo-
ration about lawfbl and dutifbl petitioBs, rs^
ptesenting their grievances or complaints to
the different branches of the legislature-. Nor
does it appear of any hnpoitanoe that Warm or
intemperate expressions, not sufikieotly re-
spectful to their superiors, oocasiooall^ fell, in
the course of their deUberatioBs, fVom people
in the lowest mnks of Hfe, unable to express
themselves with that decency which is required
fh>m men In higher sftoatioos, if it be certain,
which it is, that they looked foiward to no
other result from their meeting, than the exe^.
cise of their unquestionable right to petitioB,

Suietlv and peaceably, without disorder or
tstuibaace.

The Tight of pelkloaiag has brionged to the
subjects of tins eouBtry, and svBo to lihe

741

£7 GEORGE IIL

Trial qfJUtmdgrM'lMm

[70-

BMBftesi of the peopie» from ancient times*
Since the Revohition it has never been questi-
oned; and immediaiely before that glorious
event, it was attacked onlj to enable a tyian-
Bioal government to subvert the public liberty.
But the attack was repelled even in the worst
of times ; and the first act of die government
of King William and Queen Mary was to
confirm the right of petitioning, as a frand^ise
•f which the people could not be deprived.
It has ever amce been considered as a right
unalterably fixed by the fundamental laws of
the state ; and, accordingly, though the ezer^
mse of it is suj^sed to be sometimes unplea-
sant to the government, yet no administration,
and neither House of Parliament, has hitherto
thought proper even to disoourage the people
in the exercise of their right of petitioning.
How many hundreds, or rather thousands, of

Eetitioos have been presented to the difierent
ranches of the legislature within these few
years, representing as grievances thinn which
are not admowled^red to be such 1 and yet the
petitions, as commg from the people in the
exercise of their right, have been graciously
received by tliose to whom they were address-
ed. And so important is the right of petition*
lAg, that every other right in the people has
bc^« supposed to depend upon it, inasmuch
as the people, if deprived of that right, would
be in oanger of losing the protection necess^
to defend them in their other rights.

It is obvious that a fair communication from
the people of their grievances and discontents
to the legislature, which has the power, and
whose duty it is to protect them, cannot be
•edition, if they have a right to make such
communication. If the people should petition
parliament without hanng the right by law
to do so, these petitions might be, and in
almost every case would be seditious and
dangerous, in raising or increasing discontents
and disturbances ; because every complaint of
a public grievance has a tendency to create a
public discontent, and this is illegal and se-
ditious in every case where the law does not
allow it. For the same reason, any violent
complaint of public grievances may be sediti-
ous or illegal, where it is not addressed to
persons having legal authority to take it into
consideration and give relief. But it would
be a solecism to say, that a petition to the
King or to either House of Parliament, stating
grievances, and praying for redress is sediti-
ous, because, 1st, it is allowed by law ; 2dly,
the persons addressed have an authority to
take the complaint into consideration and give
relief. Petitioning is indeed considered as a
means of removing discontents and preventing
disturbances, not as a means of raising them ;
and this may be true it some cases, though it
is not always so, and we have frequently seen
a forment of discontent much increased by
numerous meetings^ of the people, called for
the purpose of petitioning. But stil) the legal
'right of petitioniog is unquestionable ; and it
Aust be: supposed that this right, though it

cannot be used without expressing discontent,
and thereby communicatiag it among the peo*.
pie, and possibly raising it, where it had pre-
viously no existence, may be legally (and
without any crime, or the fear of criminal pro-
secutions) used in every case whatever, even
though the use of it should in some respects
have a bad tendency; the utility, and even ne»
cassity of presenting the right, counterbalanc-
ing the mischieCi which may be occasioned by
the seditious or discontented spirit which may
he raised by it.

But it must be plain, that if the people have
a right to state the grievances in petitions for
redress of grievances to the different branches
of the legislature, it follows as a necessary
consequence that they have a right to state
these grievances in the plainest language, and
even in what is commonly considered to be
strong or coarse language in the description
of public abuses, if they do not in their peti«
tions violate that respect that is due to the
legislature : under that restriction, tb^y may
assert in their petitions that there are the
grossest abuses, even in the legislature itself.
And you need not be told, that even petitions
of that kind are occasionally sent from all
quarters of the country, when discontents pre-
vail among the people. A stranger to the
peculiarities of the British Government might
think it odd that petitions of this class, con-
taining inferences of a nature apparently so
irreverent, not only indicating an extreme
degree of discontent in the petitioners, but
directly tending to raise and aisseminate the
same kind of discontent through the whole of
the kingdom, should be tolerated, especially
where it is plainly the opinion, not only of the
different branches of the legislature^ but ato
the opinion of the more sensible part of the
community, that the petitions are very ill-
founded in their representations of grievances,
and demand, by way of redress, new public
measures or arrangements, which would not
only be useless, but dangerous and even cala-
mitous. Such considerations, however, have
no influence, or very little inflnence, in the
question, whether the people have the right to
present their petitions, and whether, when
offered, the petitions ought to be received.
On the contrary, it has long been held by the
legislature, that, as the people have the right
to petition for redress of grievances, so they
have the right to state what they consider to
be their grievances, whether they are really

frievances that ought to be redrnsed or not.
he general rule is, that however unreasonable,
or unfit to be granted the prayers of the peo-
ple in their petitions may be* it is not unfit to
receive the petitions, and the people have a
right to present, them, a right that .is unalie-
nable.

But further, if the right of petitioning be-
longs to the people, they must of necessity
have the right of deliberation upon the subject
of their petitions, to consult with each other
at public meetings,, to be advised by thoae

and Thomat Bmrijvr SediUon.

A. D. 1817.

C78

vho are able to advise (hem, or tMnk them^
seWes able, upon the various points which may
ooeor in considering what are grievances, and
what are not ; and if there are grievances^ what
are tiie remedite that ought to be proposed or
prayed for in their petitions. With regard to
the important claims which may be made in
petitions to the legislature^ every man neces-
sarily must have a right to meet with his
fellows, either in small or in great numbers,
and to discuss the matter with them* One
man may think that annual parliaments ^re
necessary ; another tlmt they would be hurt^
ful or impracticable. On this trial, it is not
necessary for us to consider whether annual
pdliaments and universal sufitage are good or
CMid ; and, on this occasion, I have nothing to
do with these questions. But I say that it is
not unlawful to petition for either. And ^
neraOy, whatever the grievance, or fancied
grievance is, it may lawmlly be the subject of
a petition to the l^slature ; and for the same
leaaon it mav lawfully be the subject of deli-
beration and discussion, even in public meet-
ings held for the purpose of petitioning.
You vriU observe, that there can be no limits
to this right of petitioning, and previously de-
liberating; for when itislimitea the right is
gone. Tbe right is to present unreasonable
as well as reasonable petitions. Or if un-
reasonable petitioningwere unlawful, the leeis-
latnre alone is the judge of what is reasonsmle
or unreasonable in ^titions. If the right of
petitioning could be restrained by the courts
of law, there would be an end of the right of
petitioning,— a fundamental law of this mo-
naichy, — a law, the palladium of our other
rights.

On iht occasion of which we have heard so
nndi, when the people in and about Kilmar-
nock met to consider whether they should send
addresses to the legislature on the subject of
their grievances, various speeches were made,
and we are told by the prosecutor, that these
speeches, and in particular the speech of
M^Lareo, were seattious. In regara to the
<|Destioii, whether or not his speech was sedi-
tMNiSy he pleads that the right 6f petitioning
necessarily implies the right of previous dis-
cDssion. If this be true, apply it to the' case
before yon. At such a meeting a speech may
possibly be seditious, where it appears either
that the meetine was called, not for its pro-
fessed object of petitioning Parliament, but
merely to aflbrd opportunities to make sediti-
w» speechea; — or that though- the meeting
\ttmafidt assembled for petitioning, the speech
went beyond its proper bounds, and was se-
ditious in statements not justified by the oc-
canoo. As to the first ofthese cases, there is
not even a pretence for denying that the meet-
ing in qaestion was 6011a fidt called for the
purpose of framing petitions to Parliament.
1 refer to all the evidence which von have
beard. It was a meeting collected for that
purpose, and for no other, nor was any further
purpose ia view.

The alignment of the public proseeotor, said
the evidence adduced, will apply only to the
second case supposed, that the speakers at a
meeting hona Jidt assembled for petitioning,
had gone beyond their bounds, and deviated
into sedition. But has this been made out
against Mr. McLaren ? His short speech, though
coarse, was suitable to the occasion, as an ex«
hortation to petitioning, and nothing else.

We were told, indeed, that this case is simi*
lar to that of Fvshe Palmer, who many year*
ago, was tried for sedition, foond guilty, and
sentenced to transportation. But ihiM la a ,
total mistake. The case before yon is Tery
different from that of Fyahe PbIomt, and from
all the other cases which have hitherto been
tried before the Court of Justidary. It has
been reserved -for the present Lord Advocate
to bring jsuch a case as the present to trial, in
which, if the verdict find the panels guilty of
sedition, the right of petitioning, hitherto un-
challenged, seems to be attacked almost ia di-
rect terms. The case of Fyshe Palmer was
that of a seditious libel, an inflammatory
hand-bill, containing seditious language, with-
out any proposal to petition Parliament. We
were told that this case of Fyshe Palmer
was defended on the same grounds that were
stated in defence at the 'beginning of this trial ;
yet the lord advocate declined to meet thai
defence particularly, and bear it down by the
triumphant authority of Palmer's case There
was no resemblance between that case and
the present. Fyshe Palmer recommended an
appeal, on the subject of grievances, not to the
legislature, but to a mob, the scum of the earth
in the neighbourhood of Dundee,-— to the so*
verign authority of the multitude. The de-
fence in that case was disregarded, — ^but what
was it ? It was said, that in this free govern-
ment it is necessary that the press should be
free. It was said that the people must have
freedom to attack public men, and must be en-
titled to publish, not treason, not sedition, in
a palpable form, but their thoughts in a free
and independent manner. It was added, that
Mr. Fyshe Palmer was. not very sound in his
mind. These were Uie defences for hia.
You wiU perhaps be surprised when I tell yooi
that m^ Lord Abercromby, who tried the case,
held, m bis speech to the Jury, that if a peti-
tion to Parliament had been in view, the libei
of which Fyshe Palmer was found guil^ would
not have been of so aggravated a desoriptloD,
— ^would perhaps not have beeu considmd a
libel ataA* '<Mudi (be reinaiked) has been
said of the purity of the intentions of the so-
ciety ; it is said they had nothing in view bat
moaerate .reform. But, Gentlemen, you .will
consider how (ar that is consistent, either vritii
the tenor of the address itself, or widi what is
sworn to by Mealmakeri who drew the first
draught of it, and who swears expressly, that
at that time he had no second petition in
his contemplation' and that what was after-
wards to DC done would have depended
upon eircumstanees. I much fear that here

57 6£0BGB HI.

791

)feftl»iker » (iriliiig tfat tnAp aad tWt if
Ibegr had not been altettded to^ the conduct
of Ihis lociety would not kave proved so pure
«• their iateotiotis ai« said to iMtre been ," * In
tbat C«i6t fott will obsfenwy that a seditkNis li-
bel wit diapeised over the couDtir without
aiijt GOnsequeoce betnf cdBteMplated bat that
of inAanuDg the ninds of the multitude. On
the other MtoAf we bave been at paiu to shew,
that the panels in tfaia ease were quiet oiderly
persenty net eoacemed witb any seditioue ao-
oieties; not connected with any political parttet,
only feelkg distress thinking they had grier*
anees to eemplain of^ and that tbrf could bet^
tsr tbefar ftituaitions by petitioning parliament.
Xbef met together in the moet orderly man-
neiv-^dellbemted as it is usual to do in public
meetings^ — ^prepared resolnftionSy-^prepared a
petitioa,— and atgned ity-^and that ^tition,
Ibougb couched in strong tenna, was presented
In the Houses of Pariiament, considered^ re*
eeivedy and laid on their tables. Is the right
tf petitiening^tben, to be interrupted in this
entraordina rymanner, by bringing the peti-
tioners into tbe Conrt of Justiciary 9

RecoUet that this was a meeting for consider-
ing tbe propriety of petitioning £e legislature^
and that the meeting would have been allOM
gather nugatory unless the persons tbeu met
bad been allowed to state thmr opinions to one
another. Ih the first pi^ of this indictsMnt,
dm panel is chdoged with baring wickedlv and
leWniously delivered ^< a speech coutaining a
number of sedttiens and inflamoiatory remarks
and assertions^ eakulated to degrade and bring
iota coatdmpt the Oovemment and legislature^
and to witham^ therefrom the confidence and
aibctiotts of the people, and to fiU tbe realm
witb trouble and disseiitien.'' Gentiomen»
vheiever the people are exposed ts grievanees
U»ey aeeewariJy must, when tbey meet to con-
sider the means of redrem, exprem their sense
of these grietances ; and I ask whether H be
possible 10 state public grievsinces, especiaUy
grievanees arising from sndk^ a souroe as over*
lantion^ iritboiit in soose w^ or other reflect*
ing on the Government* In the exercise of
our right of petilioning a^sinst grievances^
these grievances must be fAentionod( and U
isisspomiUe to B^ntisn them^ or even to
allude to thein, without briuging tks Govet»«
SmM into discredit. For exam^ let a peti*
lion be ptesented against ovcr*taxati#n» What^
ever were the causes of the evil^*-wars just
«ran)us^ — unavoidable misfortunes^ or mis-
•onduetin public afiaits^^^ is lawful to state
the grievnnce. But can it be steted withont
aiElcliBto mure or less^ of attempting to ^iffest
Ae public opinion su tathe mentsor demerits
«f adminietintieQ? Every piAHe stateiaeni
mspeeting pufalie afidis has that tendency.
Bat are the people to be interrupted on soeh

r lands, in tbe execcise of their just rights .
ii of the essence of their right to cooBfiain

Trial ^Alixanier McLaren

[S0

* Fysbe Palmer's oase % How.
*■ 371.

Mod. St

of grievgnces, and therefore I approAkend yo«
must disregard entirely those general expres-
sions in the iodlctment, charging McLaren's
speech as tending to bring the Government
into contempt. Tbe petitionea felt griev->
ances ; — tbey prepared petitions, and it is im-
possible to state a puohc grievance without
throwing blame upon the Government. I do
not mean to examine the question, whether
there really was any blame attachable to
Government ; for it is the same thing in thin
case whether the petitioners were right or wrong
in their statement. My defence is, that the/
were in the fair prosecution of legal views.
Suppose no words to have been uttered but
what would, in other circumstances, have beeis
considered seditions, their baring had a righC
object in view is a good de£mce. But every
sort of obloquy has been thrown on the petiti->
onersy without any notice of the lawful object
tbey bad in riew, as if tlieir object were to be
kdd entirely out of consideration.

The legality of the object, and the situariom
in which tbe speeches were uttered, ate tbe
most important eircumstances of the case.
Every thiing else is of a trivial and subordinate
nature. But let us see what tbe panel is
alleged te have sai4* No positive evidence
has been adduced te prove any part of hie
speech, except a few words at the end of the
passage quoted in the indictment, and, so for
as I bave observed, you have only the uneer*
tain evidence of one person to these words*
I shall remark upon the words in the indiel«
ment.

'* That our sufoings are insupDorte.blc^ ie
demonstrated to the world.'' I ao not amy
whether Uieir sufferings were insupportable or
not ; but tbey appear to have been sevcfre^ and
tbe pec|)le were met for the purpose of cob*
sidering them, and to join in petitioning fmg
relief. Here I presume is no sedition.

" And that they are neither temporary, aer
occasibned by transition from war to peace, in
palpable to all, though all have not the courage
to avow it.'' I do not say that proposition in
palpable to eveiy body. Some are daspeeei
to tnink that the calamity has been occasioned
in consequence of the sudden transition fmna
war to peace, and some dispute that propo*
sition. Some are of opinion, that if we bad
continued tbe war, at an expense of a hundred
millioos a year, we should have infolUbly se*
cured the national prosperity and greatneas*
I shall not attempt to settle these points, not
is that neeessaiy to the present argument^ and
t beg leaive to protest against the idea that I
give any opinion upon them at all. Peibnpt
Mr. McLaren may include me in his censure
for my went of courage in not avowing m^
opinion.

** Tbe fact is ire are ruled by men only s<h
licitous for tbeir own aggrandisement; and
they care no further for the great body of the
people,, tban they are subservient to their ovns
accursed purposes. If you are convinced of
this, my countrymen^ I would therefore pu)

81]

and

Bairdjbr SedUion.

A. D. 1817.

[83

Ike i^itetUoQ, we jcn degeeerate enough to
bear it ? Shall we, whose forefathers set limits
to the all graspisf power of Rome ; shall we,
whose forefatheiVf at the never-to-be-forgptten
field of fiaanockbuniy told the rotghty Edward,
at the bead of the most mighty army ever trod
•D Brilaio s soil, ^ Hitherto shalt thou come,
eod no farther ^ shaH we, I say, whose fore>
fatheis defied the efforts of foreign tyranny to
enslare our beloved country, meanly permit, in
our day, without a murmur, a base Oligarchy
to feed th^r filthy Termin on our vitals, and
rule us as th^y will ? No, my countrymen/'
A commentary was made on this passage
though it is not proved that the panel ever
spoke it. The prosecutor takes it for granted,
without evidence, that the words were spoken.
I am, therefore, not under the necessity of de-
fending these words. But are they in reality
so culpable ? Are they seditious ? They are
mere words of course, in expressing those pub-
lic < grieTances to which they refer. Every
child knows that they are the common and
hackneyed terms used by petitioners for public
reform, and (excepting one or two allusions* in
whidi there is evidently no sedition), if they
are not tame and feeble, they are at least neither
seditious nor inflammatory. Every word ap-
plies to the professed object of the meeting m
petitioning, and to no other object. The pro-
secutor applies some of the words to the king,
but this is a misconstruction quite unworthy of
my lord advocate. Ministers, and the pos-
sessors of borough interest* are the vile Oli-
garchy, who are said to feed their filthy vermin
OQ our vitals, and rule us as they will, and tliis
attack was justifiable in the way it was made.
What would avail the right of petitioning, if
there was no right to petition against his majesty's
ministers and their partisans ? Ministers may
be impeadted in parliament for their public con-
duct, and they may be complainea of by the
people in their petitions. Are petitions to par-
liaiDent against ministers to be punished ^a
sedition ? What hare we here ? The opinion
of the panel that the ministers have not acted
in an honest way, or as ministers ought to do.
The opinion is expressed a little strongly, but
it does not go beyond legal bounds. The pe-
tition was uterwards laid before parliament,
and was received with respect. Now the ques-
tion before yon is not, whether the ministers
are culpable or not — not whether lord Castle-
reagh or Mr. Vansittart might bring an action
fcr a libel or defamation— but whether there is
any sedition in this speech. I ask you,
whether there is any sedition in complaining
of these ministen ? Sedition is an attack on
the sovereign of the state— an attack on the
government, not on the ministers of the go-
▼emment. Yon may attack the latter in any
way> without being guilty of sedition.

Kit luther, as to the passage about the
Oligarchy. It is generally understood that a
few penons, not exceeding 300, are possessed
of an influence in the House of Commons that
a very pernicious to the state. Thia is the
VOL XXXUL I

Oligarchy, the government of a ihw by uneoiH
stitutional influence, alluded to in the paner^
speech. Is it sedition to take notice,, even by '
allusion, of such a public grievance? ]^ this
sedition? Against whom is it sedipon?
against d^ Kingl against the Lords? against
the Commons ? against any branch of the legis-
lature, or against the legislature taken as a
whole? it is sedition against no person or
legal authority whatever. It is, indeed,
directed against the Oligarchy itself, which,
in the opinion of the petitioners, is the
worst «nemy of the King, Lords and
Commons. The King, Lords and Commops
ought to be independent ; and, if an uncon-
stitutional influenoe rules over them, is it se-
dition to oomplain of that influence ? Every
friend to the constitution will complain of it,
if he supposes it to exist. I apprehend there
is nothing in this part of the charge ; and while
M'Laren denies having used these expressions
about our rulers, I say there is no sedition in
them, i would say so, even if the words had
been used where no petition to the legislature
was in contemplation. But, considering that
the meeting was called for that purpose, *
nothing can be more unquestionable thaa that
such langpuage was not seditious.

I come now to the last of the words quoted
in the indictment, and I hope to satisfy you
that there is nothing seditious to be found in
them. Allow aoe here to remind you of
McLaren's situation when he made (his speech.
It has been proved that the task of opening the
meeting was imposed on him, contrary to his
inclination, and came upon him rather unex-
pected ly . It was indeed proposed to him eight
days before the meeting, but he was unwilling
to undertake it, and immediately before the
meeting he pressed Mr. Samson to take the
business off his hands. An hour before the
meeting Mr. M'Laren was again urged to open
the business; and being in soma measure
compelled to it, he retired for a very short time,
and made some notes of his short address to
the meeting. You will see in the whole pro-
ceeding t^e most evident marks of haste. It
is not proved that the last sentence was written
in his notes. On the contrary, it was not
written. Ue was placed on what is called the
hustings, and delivered his speech during a
storm of wind, rain and hail ; from the noise
of which, and particularly from the rattling of
the hail on umorellas, it was almost impossible
to hear what he said. Besides the words con-
tained in his notes, part of which he spoke, and
part of which he omitted, he spoke other words
which. were not in his notes. What these
words were is uocertain,«as they could not be
perfectly heard. A single witness told you be
heard and recollected them, though he could
not recollect any other words of the panel's
speech. There is no great reason to rely
on the recollection of the witness, though
there is much reason to presume that the
words had not the meaning given to them
by the publie prosecutor. The words in
G

837

57 GBOROE til.

mat i^AbamUfiKr M*lMtK

the indictment tre, ^ thoald be be to infatuated
as to turn a deaf ear to their just petition^ he
has forfeited their allegiance. Yes, ny feUow-
townsfnen, in such a case, to heU with our
allegiance." But the passage is in different
words according to the etidenee oJT Mr. Finnic,
whose recollection of words, deliyered in the
midst of hail and wind, and the noise of um-
brellas, while nobody else could hear what
McLaren was saying, is the only evidence for
the prosecutor of me sedition. Aaother wit-
ness saijd there was something in the speech
about hell and allegiance, but he could gi?e no
intelligible account of the passage.

Now, is it probable that the panel should
have so expressed hfmself, or is it proTed that
he used the words imputed to him ? You see
the rest of the speech does not appear in the
same mutilated form with the pas«^ given by
Mr. Finnic. There is reason to bebeve, there-
fore, that the passage so mutilated is not the
passage deliyered bv McLaren. And jret ^ou
are called upon tpt rely imnlicitly upon Finme, a
single witness, to the woras of a speech, though
there was such a noise when it was detiver^
that persons near the orator could not hear him :
And this part of McLaren's speech is said to
have been seditious. Gentlemen^ you must
always bear in mind the occasion. No otiter
passage of the speech was seditious. McLaren
was recommending a petition to the Prince
BegenL He was speaking of his royal high*
ness in the most respectful way^ and in a warm
strain of ]<mlty. '^ Let us lay our petitions at
the foot of the throne, where sits our august
prince, whose gracious nature If ill incline his
ear to listen to the cries of his people." Here
is the fondest expectation of being listened to.
But it is natural to mingle, with the kindest
and most dutiful sentiments, the severity of
doctrine and reasoning^ and, on this occasion,
it is possible that the rigour of our constitu-
tional law for extreme cases may have sud-
denly occurred to the mind of the panel. We
all know that our constitutional rignts and du-
ties go hand in hand. This has been stated in
everr possible form in which a proposition of
the kind can be staled. At the Revolution,
the Ixnds and Commons held James to have
abdicated the throne, merely because he left
ib« country^ and the illusthous house of
Hanover wsi at last established, because James
ha^tailed in the duties he owed to his subjects.
Again, in Scotland, it was not held that J ames
had abdicated^ but that he had /MrfeiteJ the
throne in eonsequence of his proceedings.
Speculations on the iuliject. indeed, aredeticate,
and ought not to be mudi indulged in. But
what was more natural than for M'Laren to
urge the propriety of petitioning, by stating
thatithe petition would of course be received,
and that if the regent did not regard the cries
of all liis people, he would forfeit their alle-
giance ? M'Diren did not say it was the duty
of the Prince Regent to listen, right or wrong,
to the petition then proposed. In thi» way the
whole passage is not so unreasonable; and

where there is anuoeertainCy what. the vuif
words weN| the moat &v6uiuble interpretatte»
must be given to them.

But, in the worst view of the words, they im-
port merely that in an extreme case, whick
could not happen, allepp ance vfonid not be due,,
and such an alternative does not import ie*^
dition. If the words were imprudent, diey
were not seditious. They might indeed hav€:
been without a vindioation,^ if they haid' becnr
used at a public meeting where no such woid»
were warranted bv the occasion, and where thA-
me^nig was not mr the purpose' of petitioniBg'
paritament. But consiaer the time when the
vrords were used. The recommendation of
ray lord advocate to this effect was cratir
correct, and I desire you to keep in mind tbaft
Uiere was a petition at the time under consider
ration, and that expressions might then be-
more allowable than at another time. The^
sacred right of petitioning is the bulwark of the
right of free discussion. Discussion may be
idlowed preparatory to a petition, that would
npt be endured at any other time. Discussion
ia necessary on aU such occasions^ Free words-
may on tb^e occasions be used when speaking
of ministers, and generaHy of public men, af
well as of public measures. Are not these
propositions self-evident? Supposing it were
asked, whether any of you have a right to write
a letter to a correspondent, and send it by the-
post. The answer would be, you have a risbt
to do so ; there is no law against it But what
if you have no right to use pen^ ink, and paper ;
no right to lift the pen, to put it in the mk*
holder, or apply it to the paper f These acts
have the same relation to writing a letter, thaft
the right of canvas8in|^ what are ffrievmicea has
to the right of petitioning, x ou hkve the
right of petitioning, which includes the right
of meeting and canvassing the subject of your
petition. Thus the right of discussion is pre-
supposed in the right of petition.

- As to the lan^age that is legal and warrant-
able in petitioning and previously discussing
the mode of petition, it is well known that
parliament may be approached with language
as strong as any part of this pamphlet, and cep-
tainly stronger than any part of the speech oT
the panel. As evidence of this, take tM votes
of uie House of Commons, and yow wilt
iind more violent and bitter expressions of
grievances, than any in this publication. I
may read one or two of thes^ petitions, which
have been appointed by die House to lie en
the table, and which the House would not
have thoi^t itself bound to receive, if they
had considered Uie language as improper in a
petition to pariiament* I hope Mr* Orent will
be allowed to read them for me.

Mr. Gnm/. — This is an extract of a petition
from Bristol, presented to the House of Com-
mons on the 29th January U317 [JSeoii from
the Vote$1. ^ That no man of sincerity will
affect to believe that such a squandering of the
resources of the country for such purposes, and

tMiBf It piM«d in th« negative.** And an*
other from the inhabitants of Delph was pre*
sented ; [fvedi] " And a motion oein^ made,
and the question being pnt, that the said peti«
tion do lie «poa the taUe, it passed in the
negatiTe.*^

On the 8l8t Januaiy, a petition from the
town of Usliiaz was presented and read, sett-
ing forth, [reocb] ** It is now notorious that
the people of tnis kingdom do experience
flagrant wrongs and neat misfortunes^ be-
cause their birthnofat of making their own laws
has, through the decaY of ancient boroughs, at
well as through fraud and usurpation, been
taken from them ; for it is ttniversallY known
that the^ nation are not represented in the
House ; in this complication of decay, injustice,
and wrong, in this rain of the constitution,
wheieby &e people have been defrauded of
the seif-preserring power of making, through
real cepresentatiTes, their own laws, the
House must see the causes of which all the
present calamities of our country are the ef-
fects : here, and here only, the cause of war,
here the cause of public debt, here the cause
of an intolerable taxation. — The law, through
ih^ r^tless power of those who have usurped
the seats in the House, assumes a severity re-
volting to humanity, and is carried into exe-
cution by the bayonet; wherefore the peti-
tioners feel it to be their duty to protest against
that corrupt and factious ustirpat^on of seats in
the House, by which all fr^eaom is destroyed^
and our unimppy country is threatened with
convulsion, slavery, or subjugation ; for in a
usurpation which inflicts on the whole com-
munity taxation without representation! nought
but despotism can be discovered.''

" A petition of the there-undersigned inha-
bitants of the town and neighbourhood of
Halifox, in Yotkriiire, was also presented and
read; containing the same allegations and
praver as the last preceding petition. — And the
said petitions were orderea to lie upon the
table?*

There are many other petitions which I may
read couched in equally strong language.

•ft]

llMJt wtA n deatlveiifepowcr in the managers
«f paper money, wonhi ever have existed, if
.^e members of the Hoose of Commons had
-becD the real repiesentatives of the people,
instead of beings as they notoriously are, the
jnete coob of an ever-grasping and tyrannical
Ollgaidiyof boconghmongers ; that it is in
'vain to hc^ for any veal remedy, for anjr solid
and sabstuitial relief except throngh the means
•of such a reform in the Commons or people's
House of Pariiament as shall ensure to the
people Um speaking iof their will throng the
-menna of representatives, annoaUychosen by
all men who have attained the age of twenty-
one years, seeing that all men pay taaae, and
dmi aU men have fives and liberties to pro-
eecti Ordeted<hat<he said petition do Ue <on
ihetaUe."

Ob the fame day, a petition from the iewn-
ehip of Qoik:k was presented and read, but it
appears to have ■contained expiessions which
were deemed otfensivje, for [reaA from the
yaia'] ** a motion being made, and the ques-
tion being put, that the said petition do lie
vpOB the table, it passed in the negative.**

On the same dav, the address and petition
4if the townof (Xdham was presented and read,
in vrinch are the foUo wing expressions: Ffeodiij
'^ In the midst of all these calamities, toe lofr-
uisteiB, m coinunction with an unconstitntional
and corrupt House of Commons, have pro-
geeded to vote away a great part of the puoUc
■MNiey to superfluous and unnecessary pur-
(poses, die whole of which evils die petitioners
ascribe to the want of a real, unbiassed, i^,
lawfril, and annual election of the members of
die Commcms Hotise of Pariiament^ instead
4if vrfakfa, the petitioners see, in that House,

Speets and other boioughmongers, hundreds
Its seats usurped ; that numbm more of
thoee sealSy through the gross venality of mo-
AOpoliang eerporators, are notoriously bought
and sold, and a laige portion of the members
of that House, who ought only to sit there as
repfeeenlatives of die people, are, nevertheless,
piaoemen and pensioners cC the «rown, and
veeeivc^ insrianesand emoluments, upwards
of t0O,000l. a^yearout of the taxes; where-
fore the petitioners feel it to be thdr duty to
proceat sigainst diat corrupt and factious usurp-
jrtioit of seat* in that House, by which freedom

fiid our once happy countnr
Lh slavery, starvation, codvuW
and luia; for, in an usurpation which
iaidiets on the whole coBsmunity taxation witb-
ooft repKsentation, nouaht but despotism can
he discovnrad, nought but rain can proceed.
Jkad the said peddo9ft were orderea to lie
wpOB the fable.*^

Immediately after ^diich, it appears that
£rcedi] '^ A petition from Ashton-under-Iine
was presentea and read, containing the same
sJlegations and prayer as the petition of the
inhaliitaafs of the township or Quick, which
was fbts di^ presented to tne House. And a
motion being made, and the question being
XfBtLp thm the laid petition do lie upon. die

Mr. CMb.— I think enough has been read,
and we need not latignethe Court and the
jury,

Mr. Gr«n^«-Particula»ly on die 12th of
March I see there are several petitions received
in the same terms with the petition from
Halifax.

Mr. Clerk, — This is but a specimen of the
petitions which have been sent to, and received
oy parliament. 'Such axe not, indeed, petitions
whidi the House of Commons is disposed to
grant. But the privilege to think and talk on
diese matters, to take advice about them, to
hold meetings about them, and to make them
the subjects of speeches, resolutions, and pe-
titions, unquestionably belongs to the people
of tfair country. The right ofpetxtioning is so
sacred, that Uie most overbearing and arbi-

871 57 GEORGE Hh

rr»a

traiy administrations hava never proposed to
restrict it altogether. You will pause, then,
before jou prooooooe a verdict, which, as the
public prosecutor demands it» wottkl» in terms
almost direct, be a verdict against the right of
petitioning: for the same argument that has
been urged against the panel would apply
against speeches relative to petitions* conj^
plaining of any other public abuses, if the
distresses of the people should be never so
great — abuses against which ne i^nnedy conld
be looked for but by petitioning the legislature,
and stating the grievances in the language of
to>utfa. Were such a pestilence i0 be intro-
duced in ^is part of the island, as prosecu-
tions to subvert the right of petitioning, the
consequences would indeed be calamitous.
The right of petitioning, so tenaciously held
by our ancestors, may l^ still more necessary
to our posterity. The present case ought not
to have been prosecuted, even if the words
had been more inflammatory than they are.
It has no resemblance to a case of sedition.
In the case of Muir,* and a variety of .others,
in which men were tried and punisHed for
sedition, a wicked purpose was always clearly
established, and the accused had no pretence
for saying that they looked toward the legis-
lature for the accomplishment of their objects.
The ipoment that such a bona fik purpose is
in view, the eubject has a right to express his
opinion, and he cannot be subjected to punish-
ment for it. If he could be punished, the
right of petition would be at an end.

Gentlemen, the panel is a person of irre-
proachable character, and his former history,
and in particular the loyalty and public spirit
of his conduct on all occasions, leave no room
for any presumption that he would be inclined
to seditious practices.

£Mr. Clerk then read the following jcertir

ficates :]

Kilmarnock, 2nd April, 1S17,
This is to certify, that Alexander
McLaren has resided in my house as a
lodger for the space of seven years against
May next, behaving himself soberly and
honestly, free from wrangling or quarrel-
ling, and as a loyal subject, speaking
respectfully of government, and all other
rulers in their different stations, so far a^
is known to me.

John Stratrern, wright.

EHmamock, 2nd AprU^ 1817.
.This is to certify, that Mr. Alexander
McLaren has resided in Kilmarnock for
upwards of eiffht ^ears, and has been se-
, veral years in habits of intimacy with the
undersigners ; and during that time, to
the utmost of our knowledge, has behaved
in a sober and peaceable manner ; at all
tiroes has been a loyal subject, a finp

2 How. Mod. St. Tr. ^17.

fneod of order, and a habitiAl respecter
of authority.

JoBH Stratheiih, wiight.

James Al£xa3«j)Er, 9tn, weaver.

John Buntin, weaver.

Wm. Howie, builder.

Geo. Smith, grocer.

John Paxton, brewer.

James Craig, weaver.

James Buntin, shoemaker.

Mr. Jeffre^j^^YovL are aware, gentlemen,
that it is now my duty to address you on the
part of the other panel ; and, after what yoit
nave already heard, and Ihe ample opportunity
you have had to consider the whole of the evi*
dence during the trial, I flatter myself I shall
be able to discharge this duty without en*
croaching much longer on your time. I wish,
first, to address a word or two to you on the
facts of the case, and to lay before you, in
a detached form, those that relate to this
panel, Thomas Baird— >after which I must
trouble you with a few words on what I ood-
ceive to be their reasonable and legal import.

It is one comfort in this case, surrounded as
it is with discomforts and anxieties, that with
regard to the facts, there can be no reasonable
doubt in your minds ; nor am I aware, indeed,
that upon this part of the subject there is any
great contradiction between the opposite sides
of the bar. And, therefore, I shall give but a
slight abridgement of the facts, separating
those which apply to this individual, tJie truth
and import ot which I do not conceive liable
to any question.

You will remember, it has been put in evi-
dence before you, that he is a man in a good
condition in life, which is denoteitl, indeed, by
his appearance. He is in reality a most re-
spectable person, who had long resided in the
town, among whose citizens he had taken an
active part on this occasion ; and, even in the
judgment of those who differed from him in
opinion on political subjects, and who, from
their official situation, had the power and the
duty to prevent him from committing any
wrong, he was universally esteemed incapable
of harbouring evil intentions against the con-
stitution. He was entrusted with military and
civil offices, which are only committed to
known and tried hands. He is past the early
period of youth, when great imprudence may
take^ptace, notwithstanding pnncinles gene-
rally correct. He has a young ramily de-
pendent on him for their subsistence; and
earns his livelihood by a trade which depends
for its success on his good character and
conduct. It has been proved that his general
conduct is not only correct but exemplary, and
that he has been in the habit of communicating
and discussing his opinions on politics with a
variety of persons who did not concur in thjose
opinions ; and therefore, while the other panel,
from being less known in the town, could not
have his character so generally* spoken to, we
wbo have been entniued with the defence of

amtilthamai

hr SetBtmn.

Buid, and >Ih> betAg 1«m dreamscrib^d in
^is rasped, eoold affrad toiMke a Mlection
ioi oar witees9^ have prnpoaely abstained
from taking ibe eridence of these who con*
.ciured ih his poMtical sentiments, or bringing
one Teformer to testify in larour of another,
and have tboaght it better to take the evidence
of those only who were naturally influenced
hy opposite motives and principles.

You heard from them that mis person has
always been remarkable for the frankness with
wfaidb he ddivered his opinions; and that,
even when expressing them with the beat and
exaggeration inseparable from such discussions
among parties who do not agree, they always
appeared to them perfectly innocent and fair.
wowne, Wyllie, and Miller, from profession
and sitoadon the roost figuring men in the
town, and the most notoriously adverse to any-
change in 4he established order of things, aU
say he «miformly maintained such language as
impressed their minds with a conviction Uiat
he was strongly and decidedly attached to the
constitntion of this empire, though he wished
for a reform in the Commons House of Pariia-
aent : that he was a mild person, aud of a
cbancter incapable of exciting, in any way,
any degree of disorder or discontent against
government.

f am aware, that a good moral character is
not in general an answer to a charge of crime,
if there is distinct proof of its having been
committed on any particular occasion ; and
that an allegation by the prosecutor of a wrong
committed by a person whose moral character
previously stood untainted, will, if supported
Dy positive evidence, lead to the punishment
of tnal person, notwithstanding such previous
good character. But I submit to ^oa, that in
a trial Uke this, depending mainly on thie
question, whether the panel harboured a
mdced, ielonious, and seditious purpose, —
or, if he did not harbour such purpose in its
obvious aod naked form, whether he was
chargeable with that disregard of the safety of
his neighbour, or thalt recklessness as to con-
sequences, which, in the eye of law, is const*
dered a moral wrong, and punished as wicked
and felonious : — ^I say, in a case in which every
thing depends on this ; where the matter is in*
tfinsically of a doubtful nature ; where it is a
qoesticm whether a person has gone beyond a
IMidooaUe vivacity of discussion, and ven-
tuied to use language which the law holdsto
be demonstrative evidence of Improper pur-
.pose — if, in these drcmnstances, you. find a
standing iq Snch a situation as the panel
teaiftMr«ttii*ea]^0»;himself to public
gifted -with powe^of eloquence-
no way accoslomed or inditted to try his
tsieals in that way — carrying on a thriving
trade, which he has no disposition to leave —
and standing comparatively uniojured, while
etbers around him were on the verge of ruin
—<>f peaceable habits^— of moderate'pohtical ^
pfinciples — under such citcamstances, I say,
foa are booad to pr^fmne for his iimoceDce;

A. D. 1817*

ro6

unless eitmiAat intention be dfariy and un*
answerably established against him. The legal
presumption of innocence,* in such a ease,
amounts almost to a moral certainty.

In this situation, Mr. Bahrd, placed as he
was hi the heart of a manuihcturing district,
could not hA to be a spectator of rery general*
and very deplorable misery. A shuer in it he
must also have been in some degree, as all
persons must be who* are connected with the
sale of commodities from which purchasers are
gradually withdrawing. Although the causes
of the general distress did nQ>t so immediately
or directly affect him, yet he heard and wit*
nessed those clamours and complaints, which-
certainly, in this part of the island, have not
hitherto broken out into those rather compas-
sionable than criminal excesses, to which- the
infirmity of human nature, rather than the ma-
lignity of individuals, or of any class of the
people, mav be hurried in seasons of such un*
precedented calamity. He could not help
hearing those complaints, and listening to the
remedies which were proposed for those evils ;
and it appears, that he concurred in the opi-
nion which some persons have held ^ and he
confessed it to all with whom he had occasion
to converse-*- that a great part of the evils arose
from a defect in one of the great bodies of the
legislature — from want of due communion of
sentiment between the bod^ of the people, and
those whose fonction it is to express theilr
sentiments, and watch over their interests.
That he entertained such an opiniou, there is
no doubt. Not going so iar, perhaps, as think*
ing that a ueform in the representation of the
people would remove the evils then existing,
ne, in common with many persons, was of
opinion, that it mivht tend at least to prevent
their recurrence. He certainly did favour the
professed object of the meetinfr, and in this,
if his guilt began, it also ended. He undis-
guisedly gave his countenance to a general
meeting for petitioning the thr^e branches of
the legislature, for redress of grievances, and
reform of the Commons House of Parliament.
His conduct in this particular was worthy of
the sincerity with which it was dictated* As-
sociated with some' others whom you have
seen, they agreed as to the propriety or ex*
pediency of encouraging this method of pro-
ceeding; and at the same time, they .deter-
mined not to take this step of calling a meeting
for petitioning the legislature, if it was op*
posed, or likeV to produce any opposition, m
an official form, on the part of the local ma^
gistrates. Accordingly mt, Baird, as one of
Uie most respectable of the committee (all of
whom seem to have been cool persons enough
when the heat of the action was over, and the
field deserted), waited on the provost; and
the provost told you, that though be disap-
proved of the meeting, he did not think ne
nad power to prevent it, • He seems . actually
to have gone out.of town when it- took place :
so far 'was he' from* thinking thefe ^was any
daDger to be appfthndad : and he wu '

iff QfiOROB. III.

JVM ^Aktmder tttatfrn

ied in bit opfailoD from tht mall— <lifft wm |
no tendency tx> tumult or disonler. |

At that meetiogi Mr. Bmidy no doubt^ «t-
ilended. He wu ttiere wid heard the apexes
ihat Jirere delivered ; some of wbidi, ondoabt-
edlj, ^icontain Tery indecorous and improper
'Cqpfettibns — expressions which it may have
been prepoetctous to utter at a meeting con-
vened for lawfol and oonstitutional purposes.
But if persons go to such a meeting at al^ they
may expect that prepoelerous expressions will
1)0 used, on both sides, peibafMy of the qnes-
tion. But is a man to ne punikied for sedi-
tion, if he accidentally hear seditious laoguage
mnt^oyed by aoodier person? Not on^ wet
the measure of ealliog a meeting for petitioning
perfectW lawful in itself, but &e bamnour of
those who attended seems to haTO been ordeily,
decent and exemplary* I do not know whether
Tonr views concur with those of Mr. Baird,
but thinking as he did on the subject, he acted
properly. It is to be taken for granted,
that Ae petitioners were sincere in their opi*
■km, and that in taking those measures, tney
thought thev would be of great eflRsct in pro*
ducing good*

At that meeting, then, Mr. Baird did not
epeak. He heard the speeches in question^ —
Mt as that could not, or course, taint him with
guilt, I am sure you will go along wiUi me in
thinking, that up to this point there was im-
thing culpable in his conduct; and therefore
the veiy beginning and ending of the crimi-
nality imputed to him consists in his having
nllefwaids (I cannot say, concurred, but) sub-
mitted to a resolution forced on.himbythe
m^rity of those persons, with whom he was
associated, in an application to parlmment, for
having these orations printed, in a foil, true
and particulat acoaunt of the whole proceed-
ings. This we stated in the outset ; and it
hat been proved, without contradiction, by
the testimony of a variety of witnesses. In
the examination of the several witnesses, no
indtcation ever appeared,-«no hint, even in
the moat distant manner, ever presented it-'
fel(— 4hat the publication of the speeches was
made inith a view that seditious doctrines
dmnld be piopatated, or that the contents of
the work should be studied by persons at a
distance. Hie puUication is dearly proved
not to have had any such ambitious object;
but to have been made in the humble view of
lecaiing a little paltry gain,— to defray tim
expense of nailing up a fow boards for the ao-
coasmodation 6f the oraton, and providing a
ftw sheets of gilt paper for thsee or four peti-
tions to be tnnsmitled to the Prince Regent
mid the Houses of Pariiameat.

It occurred to the petitioners, that the only
means for defraying mis heavy expense was to
print an aooonnt of their piocoedings^— that
anums tiieir neighbours, whether those who
agreed mth them» or weto opposed to them
in iwlitkal oninions, tbcy might sell as many
eopies as te^ht raisie the sum which

is not the leeit veetige of aoydmbn m havn
the woik read or admired, either for mischief
or glory; The only object was to get a small
number sold; and aeoordrngly diey seem all
to have been sold — without so mndi as a
single copy having been given awuv. Mr.

Baird, into whose hands, as on^
mittee of the petitioners^ a number of the
copies were impressed, got rid of them, it is
true, vqth more fodlity than another man who
was examined to-day did of Jiis copies. But
this was merely becnnse he keeps a weU-fro-
quented shop, not because he was in any way
aealoos for their circulation. The natum of
Mr. Baird's trust and management in the
burfnem were proved to vou by his own shop-
man, and his own dedamtion; and it has
been proved, that if he got rid of every oim
copy he vras possessed of, shopmanlike 1m
exacted his groat for every one ot them urhidt
he sold. Tbe printer said that about 400
copies were printed. Some remained in the
haiids of members of the committee who did
not get them sold. They were not sold te
booksdlen ; becanse the petitionen could not
eflbrd to pay booksdlcrs' commission: thev
were sdd for a paiticnlar purpose, which £
have specified, and were soul in the cheapest
way. Some of them were sold in a grocer's
sh<^ where they mixht be ofuse to wrap up
goods that were purmsed; other members of
me committee, however, could not sell their
eopies, because they could not, perhaps, be of
sudi immediate use to the purchasers.

You see the nature of this transaction, then^
and you must now be aware that it is con-
formable U> the statement which was given of
it at the beginning. Mr. Baird took no step
disconformable to his general dmracter of n
quiet, modest, honest, wel)-disposed, good
man ; he made no speedies, but disapproved
of various speeches and passages in speedma
(which foot has been folly made out), as hamh
and offensive; and these are considerations
which certainly are of importance in determtn*
ing whether he n guilty or not of sedition, an
diarged against htm in this indictment.

These are the whole of the foctsof this case ;
and you will be pleased to add to these focta
what is proved to you by the evidence, and
which the dates and the documents themselves
instruct, vix. Uiatall this took place publidy.
It was known to his majestv's advocate, and
all the lieges, that this was done so long beck
as December 1816; and yon have seen that
400 eopies of the publication were all that
wevepnnted. I do not think yon will imagint
it is very Ifkdy the anthon and printem es»
peeled a gtfeat sale. None of the authom were
mndi known inthe literaiy woiid, and none of
them, I think, profossed themeelves to be
poUttdans. The object was to sell copies to
the eniiotts cdnntiy gendemen and the goasipa
m the neighbourhood. It was reasonable to
think, too^ that some peofite mig^ have tlua
eariQSity» who were prevented by the weather
frMB gm^^mtt it, bTtttmidiag at thn meeting ;

09l mwf THaiiifi fiwrrfjTir VMmw

far ywfi i*i> KwMMt, thai iIm ipeedm i*tM

A. D. 1817.

•pocMi IB dtfiafioe of tiM angxy biwtf of
iMTODy — ifi tiM nidtt of hafl, mow, and wind^
•ad potwitiwtaiiding tho coporitioa of the
•lomeBlt. PodtwDS ia oenumiiity with tbese
gpoechOT <pero cngi owod ; tad it it nol demod,
iior can there be wf doebt of the feet, thai
liwjr were oieaentedp and tliat thej were re-
ceived Willi the oaoal cinlities with which
pewons in thoee hig^ qmirleia are woat'to
leeetve aoch coimmmifeatioM,

All thie was dene montht ago, and ^ a time
when DO atarm aboot seditioa obtained here
or in aaiy oUier quarter of the kingdom; and
Mr. Beird was-attowed lo idl his commodity
el pamphletay and to convene with his neiph-
boiua aboQt them^ without an j bod^ hmting
Ihathewaiin any danger, not fitom'Whathe
was doiaff, bat from wluift he had done weeks
before. Bot, after that, some odiootf proceed-
ings took place in another quarter of the
ishiad. Certain mobs had eicited consider-
aMe alarm in the mind of the Lq^islatiire, and
of the inhabitants of the metropolis^ where a
larn asMmbkq^e of people is easily convened)
and distnrbance easily excited. They did
comnit some little ontrage, and occasioned
aome fear for the peace of the dty,* This
Hear was propasated to the extremities of the
empirey'-4nd then the Ttgilance of the Pnblic
Fh»ecntor in tlds country goes back to a for-
BKT meeting, in a remote quarter, which had
not been attended with any tumult, and had
not been followed up wifh any the slightest
criminal consequences. A book, consisting
of foolish, ridicnkras specimens of rustic ora*
torr is on this occasion brought forward,-—
and this quiet, esteemed and trust-worthy
man is brought to your bar, and arraigned for
having wittedly and fdonioosly circulated

We come now to consider what is the in^
port of the foets in this case, and what is the
▼erdict you ought this night to pronounce on
the peison, wImso character through life, and
whose conduct upon one occasion, have been
detailed to yon in evidence to-day: The
ouestion is^ Whether the eridence to which I
have referred is such as to compel you, con-
trary to that general presnmption of innocence
ifl^di law establishes for every aoeosed per-
aoB,*-coatnry to that special presumption of
Jljnnrnncfl wluch the wbole tenor of the de-
llmdaBt's lifo and Aoaduet morallT esUblishes
in his favoor,— wheihvr that evidenee, I say,
be each as to constrain yon to pronounce theft
kis eaadact upon this occafion originated in
amligaaal aad diabolical parposes^-— purposes,
foom the snoosis of vrido he had Orety thing
to lose and nothing to gain, but was to be
ttorsly an inglorioos stirrer up of sedition in
the fim instance, and a victim to its guilt and
iosaaify in the second. — ^The question I say is.
Whether the evidence goes to shew that such
Is Ihe chaiacter of his. o£fence,— that such foUy

"vw-

flee James WatsonVCeM, VoL xzxii.p. 1«

oMst be imputed to a men of sense and
racter, and that vou cannot help- saying, on
your oaths, that ne disregardea all conse-
quences to others, to his country, and to him-
self and was detehnined to stir up seditioa
and distaibance.

The essence of this, and of all other Cffimee,
consists in the moral defect by which they are
engendered; and therefore it is, that eveiy
criminal indictmeot necessarily charges, that
the offence for which it threatens the iccosed
person with punishment was committed wtclh

acnd/emioiii/j^ ; and I believe almost every
ctment for crimes of this description con-
tains in more express words than occur here,
an allegation that the acts set foitii and de-
scribed were done wdA en mlotfioa to excite
sedition and disturbance. It is the intention,,
in short, in which the crime legally and
morally consists. I do not find foult with the
omission of that in the indictment. I rely oi»
the candour, propriety, and vrisdom of the
Bendi, to give you the requisite information
on the subject : and I am sure yo^ wiU be told
that the words indispensably inserted ^in tliia
indictment are in their own statement equiva-
lent to a direct allegation of intention in the
commission of the crime charged; aad that a
more particulsr charge of intention oould nol
have served any purpose.

When I sav this is a necessary piH of this^
and of all other charges of sedition, yon win
ffive me so much ciedit as to suppoee that I
do not mean to assert that the Fuolic Prose-
cutor is bound to bring direct and positive
proof of a criminal intention having bee»
actually expressed, or that it is not compe^
tent for him to aigne that the nature of the-
acts themselves, — the circumstances in whick
thqr were committed, — the situation of the-
party, — ^the temptations to which he was ex-
posed,^-ids whole conduct before and after tibe-
time he con^mitted the acts, — the general and
well-known complexion of the times when the*
acts were done, are to be taken into consider*
ation, in forming a judgment as to the inten*
tion with which the acts were performed.-— ^
Sttdi considerations csnnotbntarord evidence
of the purpose and intention \ and in ^ues*
tions with regard to almost dl other onmes^
^is inference is generally so plain and neces*-
sarjr M to make the task of the Jury compa*
rativdy easy. If a man aim a blow at another;
and knock out his brains, — if a person break
in at night and rob a house, or if he for^e a
bill, and draw money for it from a bank, it is
vain ta say there is a necessity to bring evi*
dence beyond the feet itself, to prove a malign
nant purpose in the one case, or a purpose of
fraud in the other. But observe me charao*
ter of sedition as defined, or attempted to be
defined, by my learned iiiend, and, indeed, bv
all the lawyers. I am not finding fault with
my Lord Advocate for not properiy defining
sedition, because it is one of uie disadvimtag^
attending such a case, that a suificient ana
satisfactoiy definition is not to be easily found)

751

S7 GEORGB IIL

Trial ^Mtumbr M*lMm

tTtt-

meattest of the peoples ^mn aooient times.
Since the Revohitioa it has oever beeo qaesti-
oned; and immedialely before that glorious
event, it was attacked only to enable a tyran-
uoal gOTenunent to sabvert the public liberty.
But t£e attack was repelled even in the worst
of times ; and the first act of die go?emment
of King William and Queen Mary was to
eonfirm the right of petitioning, as a franduse
of which the people could not be deprived.
It has ever ^mce been considered as a right
unalterably fixed by the fundamental laws of
the state ; and^ accordingly, though the exer-
cise of it is suf^sed to be sometimes unplear
aaat to the government, yet no administration,
and neither House of Parliament, has hitherto
thought proper even to disoourage the people
in the exercise of their right of petitioning.
How many hundreds, or rather thousands, of
petitions have been presented to the different
branches of the kgislatnie within these few
years, representing as grievances thinn which
are not acknowled^ to be such 1 and yet ihe
petitions, as coming from the people in the
exercise of their right, have been graciously
received by tliose to whom they were address-
ed. And so important is the right of petition-
ing, that every other right in the people has
been« supposed to depend upon it, inasmuch
as the people, if deprived of that right, would
be in aanger of losing the protecticm necessary
to defend them in their other rights.

It is obvious that a fair communication from
the people of their grievances and discontents
to the legislature, which has the power, and
whose duty it is to protect them, cannot be
•edition, if they have a right to make such
communication . If the people should petition
parliament without hanng the riffht oy law
to do so^ these petitions might be, and in
almost every case would be seditious and
dangerous, in raising or increasing discontents
and disturbances ; because every complaint of
a public grievance has a tendency to create a
public discontent, and this is illegal and se-
ditious in every case where the law does not
allow it. For the same reason, any violent
complaint of public grievances may be sediti-
ous or illegal, where it is not addressed to
persons having legal authority to take it into
consideration and give relief. But it would
be a solecism to say, that a petition to the
King or to either House of Parliament, stating
grievances, and praying for redress is sediti-
ous, because, Ist, it is allowed by law ; 2dly,
the persons addressed have an authority to
lake the complaint into consideration and give
•relief. Petitioning is indeed considered as a
means of removing discontents and preventing
disturbances, not as a means of raising them ;
and this may be true i^ some cases, though it
is not always so, and we have frequently seen
a forment of discontent much increased by
numerous meetings of the people, called for
the purpose of petitioning. But stiU the legal
'right of petitioniog is unauestionable ; and it
must be. supposed that this right, though it

cannot be used without expressing discontent,
and thereby communicating it among the peo».
pie, and possibly raising it, where it had pre-
viously no existence, may be legally (and
without any crime, or the fear of criminal pro-
secutions^ used in every case whatever, evea
though tne use of it diould in some respects
have a bad tendency ; the utility, and even n^
cessity of presentins the right, counterbalance
ing the nuschiefr which may be occasioned by
the seditious or discontented spirit which may
he raised by it.

But it must be plain, that if the people have
a right to state the grievances in petitions Cor
redress of grievances to the different branches
of the legislature, it follows as a necessary
consequence that they have a right to state
these ^evances in the plainest language, and
even m what is commonly considered to be
strong or coarse language in the descriptioa
of public abuses, if they do not in their peti-
tions violate that respect that is due to the
legislature: under that restriction, they may
assert in their petitions that there are the
grossest abuses, even in the legislature itself.
And you need not be told, that even petitions
of that kind are occasionally sent from all
quarters of the country, when discontents pre->
vail among the people. A stranger to the
peculiarities of tne British Government might
think it odd that petitions of this class, con-
taining inferences of a nature apparently so
irreverent, not only indicating an extreme
degree of discontent in the petitioners, but ■
directly tending to raise and aisseminate the
same kind of discontent through the whole of
the kingdom, should be tolerated, especially
where it b plainly the opinion, not only of the
different branches of the legislature, but also
the opinion of the more sensible part of the
community, that the petitions are very ill-
founded in their representations of grieyances,
and demand, by way of redress, new public
measures or arrangements, which would not
only be useless, but dangerous and even cala-
mitous. Such considerations, however, have
no influence, or very little influenoe, in the
question, whether the people have the right to
present their petitions, and whether, when
offered, the petitions ought to be received.
On the contrary, it has long been held by the
legislature, that, as the people have the right
to petition for redress of grievances, so they
have the right to state what they consider to
be their grievances, whether they are really
ffrievances that ought to be redressed or not.
The general rule is, that however unreasonable,
or unfit to be granted the prayers of the peo-
ple in their petitions may be, it is not unfit to
receive the petitions, and the people have a
right to present them, a right that is unalie-
nable.

But fiirther, if the right of petitioning be-
longs to the people, the^ must of necessity
have the right of deliberatioa upon the subject
of their petitions, to consult with each other
at public meetings,, to be adjrised by thofe

and Tkonuu Bairdjor BedUion,

A. D. 1817.

C78

who are able to advise them, or think them-
sehres able, upon the Tarious points which may
occur in coosuleiing what are griemncef , and
what are doc ; end if there are grieyances^ what
are the remedi^ that oaght to be proposed or
prayed for in their petitions. With regard to
the important claims which may be made in
petitions to the legislatnret. every man neces-
sarily most have a right to meet with his
/eiiows, either in small or in great numbers,
and to discuss the matter with them. One
man may think that annual parliaments lare
Aeccssaiy ; another that they would be hurt-
fbi or impracticable. On this trial, it is not
necessary for us to consider whe^er annual
psoiisuttents and universal suffirage are eood or
CMkd ; and, on this occasion, I have nothing to
do with these questions. But I say that it is
DOt nnlafrful to petition for either. And ge*
neraOy, vHiatever the grievance, or fancied
grievance is, it may lawfully be the subject of
a petition to the legislature ; and for tlue same
-season it may lawfully be the subject of deli-
becalioB and discussion, even in public meet-
ings held for the purpose of petitioning.
You will observe, that there can be no limits
to this right of petitioning, and previously de-
bbeniting; lor when it is limited the right is
gone. The right is to present unreasonable
as well as reasonable petitions. Or if un-
resoonable petitioningwere unlawful, the legis-
lature alone is the judge of what is reasoniu>le
or unreasonable in ^titions. If the right of
petitioning could be restrained by the courts
of law, there would be an end of the right of
petitioning, — a fundamental law of tliis mo-
■aicfay, — a law, the palladium of our other

On lihe occasion of which we have heard so .
Bwdi, when the people in and about Kilmar-
nock met to consider whether thev should send
addresses to the legislature on the subject of
their grievances, various speeches were made,
and we are told by the prosecutor, that these
speeches, and in particular the speech of
Mliereo, were seditious. In reganl to the
^piestion, whether or not his speech was sedi-
tMNM, he pleads that the right 6i petitioning
neeeasarily implies the right of previous dis-
cswsion. If this be true, apply it to the* case
before you. At such a meeting a speech may
possibly be seditious, where it appears either
that the meetins was called, not for its pro-
fessed object of petitioning Parliament, but
nerely to afford opportunities to make sediti-
ons speeches; — or that thoug^- the meeting
hm^fidt assembled for petitioning, the speech
went beyond its proper bounds, and was se-
ditious in statements not justified by the oc-
casion. As to the first of these cases, there is
not even a pretence for denying that the meet-
ing in qoestion was hcrna fiie called for the
rirpose of framing petitions to Parliament,
refer to all the evidence which vou have
heard. It was a meeting collected for that
purpose, and for no other, nor was any further
purpose in view.

The argmnent of the public prosecutor, aoid
the evidence adduced, will apply only to the
second case supposed, that the speakers at a
meeting hcma jidt assembled for petitioning,
had gone beyond their bounds, and deviated
into sedition. But has this been made out
against Mr. McLaren T His short speech, though
coarse, was suitable to the occasion, as an ex-
hortation to petitioning, and nothing else.

We were told, indeed, diat this case is simi-
lar to that of Pyshe Palmer, who many years
ago, was tried ror sedition, found guilty, and
sentenced to transportation. But Ihis is a
total mistake. The case before you is very
different from that of F^sbe Palmer, and firom
all the other cases which have hitherto been
tried before the Court of Justiciary. It has
been reserved 4br the present Lord Advocate
to bring 3uch a case as the present to trial, in
which, if the verdict find the panels guilty of
sedition, the right of petitioning, hitherto un-
challenged, seems to be attacked almost in di-
rect terms. The case of Fyshe Palmer was
that of a seditious libel, an inflammatory
hand-bill, containing seditious language, witb->
out any proposal to petition Parliament. We
were told that this case of Fyshe Palmer
was defended on the same grounds that were
stated in defence at the beginning of this trial ;
yet the lord advocate declined to meet that
defence particularly, and bear it down ^ the
triumphant authority of Palmer's case There
was no resemblance between that case and
the present. Fyshe Palmer recommended an
appeal, on the subject of grievances, not to the
legislature, but to a mob, the scum of the earth
in the neighbourhood of Dundee,-— to the so*
verign authority of the multitude. -The de»
fence in that case was disregarded, — ^but what
was it ? It was said, that in this free govern-
ment it is necessary that the press should be
free. It was said that the people must hate
freedom to attack public men, and must be en-
titled to publish, not treason, not sedition, in
a palpable form, but their thoughts in a free
and independent manner. It was added, thai
Mr. Fyshe Palmer was. not very sound in his
mind. These were the defences for him.
You wiUperhaps be surprised when I tell you,
that mv Lord Abercromby, who tried the case,
held, in his speech to the Jury, that if a peti-
tion to Parliament had been in view, the libel
of which Fyshe Palmer was found guil^ would
not have been of so aggravated a description,
—would jaerhaps not have been considered a
libel atalL ^flluch flie remarked) has been
said of the purity of tne i

intentions of the
cietv ; it is 'said they had nothing in view but
moderate reform, fiut, Gentlemen, you .will
consider how far that is consistent, either witii
the tenor of the address itself, or with what is
sworn to by Mealmaker, who drew the first
draught of it, and who swears exprsssl^^y that
at that time he had no second petition in
his contemplation'' and that what was after-
wards to be done would have depended
upon drcumstanees. I much fear that here

791

57 GEOaCB HI.

Tritd qfAkfonier M'Laim

[se

HCMliMker it kO&ug tht fanitliy aad tktt if
tb^ bad not been attended to» tbe conduct
of thit societjr wonld not bnve proved so pure
ai their iatentioDs are said to Ikare been/' * lo
l^t caiey xou will otenwy that a seditioiis li-
bel wna diaperfeed over Uie coontrr witbout
aAjt consequence being cOnteaiplafted bnt that
of inflamMig the nindt of die Multitude. On
the other hand, we have been at pains to shew,
that the pa«e]a in this eaae were quiet oiderly
peraoofy not eoncemed with any aeditioua so^
gieliea ; not connected with any poUttcal parties^
only fading dlstresi^ thinking they had gfier*
aaces to ooaaplain of, aad that they conra betp
ter their sitnations by petitioning parliament.
The^ BMt together in the aMat ovdnrly man-
neiv-^delibemted as it is naual to do in public
taaetings^—prepared rasokidoniiy— 'prepared a
petition,— 4M signed it, — aad that ^tition,
llongh condied in strong tecmsy was presented
to the Honaes of Patiianient, oonsideredy re*
eeivedy and laid on their tables. Is the right
^petitieniagythen, to be interrupted in thta
eatraordina mnanner^ by bringing the pet»*
tinners into the Conrt of Justiciary^

RecoUet that this was a neeting ibr consideiw
ing the propriety of petitioning the legislatare^
and that the aMeting wonM have been aHo^*
gather nugateiy unleas the persons then met
had been allowed to state their opiaions t« one
another In the first page of this indictaMnt,
the panel is ohttigad with hairing wickedly and
letooionsly delivered '< a speech eootaimog a
number of seditiens and inflanmatory remarks
WHi assertions^ eaknlated to degrade and bring
im» Goatanpt the Oovemment and legislatnre^
and to withdrew therefrom die oonlklence and
aihctiotts of the people, and to fiU the raidm
wilh treuble and diesesitien." Gentleaaen,
wherever (he peopk are exposed to griavanees
they necessarily must, when they meet to eeik-
aider the means of redrem, espiem their sense
of these grietances ; and I ask wliether it be
possible to stato pnUic grievances, especieUy
grievances arising from sndk a sonroe as over*
taxation^ without in soaae way or other reflect-
ing on the Government. In the esereise of
onr right of petilioning against grievances^
these grievances mnst be aikentioned ( and k
isiBH>omihie to mention tfaem^ or even to
allude to them, witbont briaginff the Ooven^
SMUt into discredit. For ttamirte, let a peti^
lien he presented against ovcr«taiatien» irhafe-
ever were the causes of the evtt^-^^wan jnst
ern^jusV— voavoidafale miefortonea^ or mis-
eanduetin pnMic afiairs^-^ is hiwinl to stato
the grievwiee. Bnt can it be elated withont
afffdiag more or leas, or attempting to afleet
An pnMtc opinaen as ta the merits or demerits
«f adminiBtmlseii? Eveiy pnbKe statement
respetling puUie eAus has that tendency.
Bat are the people to be intemptod en sneh

r rends, in the ezedtcise of their just rights.
i:* of the essence of their ri^t to complain
^^■^ • ■ ' ■ I I I I II —

* Fyshn Pahner'8 case % How. Mod. St«
Tr. 371.

of grievgncas, and therefore I apprehend yon
must disregard entirely those general expres-
sions in the indiclmentt charging M'Laren'a
speech as tending to bring the Government
into contempt. The petitioners felt griev-
ances ; — tbey prepared petitions, and it is im-
possible to state a public grievance without
throwing blame upon the Government. I do
not mean to examine the question, whether
there really was any blame attachable ta
Government ; for it is the same thing in thin
case whetherthe petitioners were right or wrong
in their statement. My defence is, that they
were in the fair prosecution of legal view8«
Suppose no words to have been uttered bnl
what would, in other circumstances, have beesi
considered seditious, their having had a right
object in view is a good defence. But ^^^
sort of obloquy has been thrown on the petiti^
oners, without any notice of the lawful object
thev bad in view, as if their oliject were to bw
laia entirely out of consideration.

The legality of the object, and the sitnatioia
in which the speeches were uttered, are the
most important eireumstances of the case.
Every thuig else is of a trivial and snbordinatn
nature. But let us see what the panel is
alleged to have sai4« No positive evidenon
has been adduced to prove any part of bin
speech, eacept a few words at the end of tbe
passage quoted in the indictment, and, so fiir
as I have observed, you have only the unoer*
tain evidence of one person to there worda«
I shidl remark upon the words in the indict*
ment.

" That our sufferings are insupDorteble, in
demonstreted to the world." I ao not sajr
whether their sufferings were insupportable or
not ; but they appear to have been sevefre^ and
the people were met ibr the purpose of con*
sidering them, and to join in petitioning fiat
relief. Here I presume is no sedition.

'* And that they are neither temporary, wsr
eccasihned by transition ftom war to peace, ia
palpable to all, though all have not the courage
to avow it." I do not say that preposition in
palnable to every body. Some are dispeeed
to toiidi that the calamity has been occasioned
in eonseqnence of the sudden transition fiwan
war to peace, and some dispute that propo*
sition. Some are of opinion, that if we had
continued the war, at an expense of a hundred
miliions a year, we should have inlalUbly se*
cured the national prosperity and greatnesa*
I shall not attempt to settle these points, nor
is that neeemary to die present aignment, and
I beg lea^Fe to protest against the idea that 1

S've any opinion ufM>n them at all. Perimpe
[r. M'Lnren may include me in his oenstue
iir my wnnt of coorege in not avowing m$
opinion.

^ The fact is we are ruled by men only ee*
lioitotts for their own aggrandisement; and
they care no further for the great body of the
people,, than they are subservient to their own
accursed purposes. If you are convinced of
this, my countrymen, I would therefore puf

SI]

and Thomas Bairdjbr Sediiian.

A. D. 1817.

[83

tile qifestioiiy «re joii degeaerate eaoogh to
bear it ? Shall vfe, whose forefathers set limits
to the all grasping power of Rome ; shall we^
whose fbre&lliiers, at the neTer-to-be-forgotten
field of Bavnockbiun, told the mighty EdWard,
at the bead of the most mighty anny ever trod
eo Britain's soiU '' Hitherto shalt thou come»
and Qo further f ahaH we, I say, whose fore-
lathers defied the efforts of foreign tyranny to
enslare our beloved country, meaiiiy permit, in
our day, without a murmur, a base Oligarchy
to feed their filthy vermin on our vitals^ and
rale as as tli^y will? No, my countrymen/'
A commentary was made on this passage
though it is not proved that the panel ever
spoke it. The prosecutor takes it for granted,
without evidence, that the words were spoken.
I am, therefore, not under the necessity of de-
fending these words. But are they in reality
so culpable ? Are they seditious ? They are
mere words of course, in expressing those pub-
lic grievances to which they refer. Every
^ild knows that they are the common and
hackneyed terms used by petitioners for public
reform^ and ^excepting one or two allusions^ in
which there is evidently no sedition)^ if they
are not tame and feeble, they are at least neither
seditious nor in6ammalory. Every word ap-
plies to the professed object of the meeting in
petitioning, and to no other object. The pro-
secutor applies some of the words to the king,
hut this is a misconstruction quite unworthy of
my lord advocate. Ministers, and the pos-
sessors of borough interest, are the vile Oli-
garchy, who are said to feed their filthy vermin
on our vitals, and rule us as they will, and this
attack was iustifiable in the way it was made.
What would avail the right of petitioning, if
there vras no right to petition against his majesty's
ministers and their partisans ? Ministers may
be impeached in parliament for their public con-
doct, and they may be complained of by the
people in their petitions. Are petitions to par-
lament against ministers to be punisbea ^
sedition ? What have we here ? The opinion
of the panel that the ministers have not acted
in an honest way, or aa ministers ought to do.
The opinion b expressed a little strongly, but
it does not go beyond legal bounds. The pe-
tition was afterwards laid before parliament,
aad was received with respect. Now the ques-
tion before you is not, whether the ministers
are culpable or not — ^not whether lord Castle-
leagh or Mr. Vansittart might bring an actioo
for a libel or defamation— but whether there is
any sedition in this speech. I ask you,
whiether there is any sedition is complaining
of these ministers? Sedition is an attack on
the sovereign of the state— an attack on the
government^ not on the ministers of the go-
▼amnent. You may attack the latter in any
w^^ withont bang guilty of sedition.

fiat farther, as to thjB passage about the
OCgatdiy. It is generally understood that a
few persons, ootexoeeding 300, are possessed
of an influence in the House of Commons that
is very pernicious U> the state. Thia is the

VOL. XXXUL

Oligarchy, the government of a few by nneon-
stitutional influence, alluded to in the panel'^

against tlfteKingl against the Lords ? against
the Commons ? agaiast any branch of the legis-
laturcr or against the legislature taken as a
whole? Jt is sedition against no person or
legal authority whatever. It is, indeed,
directed against the Oligarchy itself, which,
in the opinion of the petitioners, is the
worst enemy of the King, Lords and
Commons. The King, Lords and Commops
ought to be independent ; and, if an uncon-
stitutional influenoe rules over them. Is it se-
dition to complain of that influence ? Every
friend to the constitution will complain of it,
if he supposes it to exist. I apprehend there
is nothing in this part pf the charge ; and while
M'Laren denies having used these expressions
about our rulers, I say there is no sedition in
them. I would say so, even if the words had
been used where no petition to the legislature
was in contemplation^ But, coiasideripg that
the meeting was called for that purpose,
nothing can be more unquestionable thaa that
such language was not seditious.

I come now to the last of the words quoted
in the indictment, and I hope to satisfy you
that there is nothing seditious to be found in
them. Allow me here to remind you of
McLaren's situation when he made (his speech.
It has been proved that the task of opening the
meeting was imposed on him, contrary to his
inclination, and came upon him rather unex-
pectedly. It was indeeo proposed to him eight
days before Uie meeting, but he was unwilling
to undertake it, and immediately before the
meeting be pressed Mr. Samson to take the
business off his hands. An hour before the
meeting Mr. McLaren was again urged to open
the business; and being in soma measure
compelled to it, he retired for a very short time,
and made some notes of his short address to
the meeting. You will see in the whole pro-
ceeding \hfi most evident marks of haste. It
is not proved that the last sentence was written
in his notes. On the contrary, it was not
written. He was placed on what is called the
hustings, and delivered his speech during a
storm of Mrind, rain and hail $ from the noise
of which, and particularly from the rattling of
the hail on umorellas, it was almost impossible
to hear what he said. Besides the words con*
taioed in his notes, part of which he spoke, and
part of which he omitted, he spoke other words
which. were not in his notes. What these
words were is uncertain,«as they could not be
perfectly heard. A single witness told you he
heard and recollected them, though he could
not recollect any other words of the paners
speech. There is no great reasoa to rely
on the recollection of tiae witness, though
there is much reason to presume that the
words had not the meaning given to them
by the public prosecutor. The words in
G

791

57 G£OaGB HI.

Trial qfAkfonier M'Laim

{S0

]|C««liMker it tilling tht Irath, aad thtt if
Ui«gr had not been attended to» the conduct
of Ihit societjr wotdd not hvr^ proved so pure
•s their uileatioiis are stid to iJAre been/' * lo
tlMut etMy y^ will obs^nwy that a seditioiis li-
bel wna diipeised over Uie countrr without
tn^ consequence being cOntmplalea but that
of inflaming the ninds of the multitude. On
the other handy we have been it pains to shew,
that the panela in thii eaae were quiet eiderly
pereonfi not concerned with any scditiouB so^
gielies; not conneeted with any political parties,
only feeling distresi^ thinking they bad grier*
aaces to complain of, aad that tbi^ coukf betp
tsr their sitnatiotis by petitioning parlianient.
The^ met together in the moot orderly man«
neiv-rdelibemted as it is usual to do in public
mneUngs^ — prepared resolutions,"* prepared a
petitioB,-<--«nd signed it, — and that ^tition,
though couched in strong tecmsy was presented
to the Houses of Paiiianient, considered, re*
eeived, and laid on their Ubies. Is the right
^petitioning, then, to be interrupted in this
eatraordina rvmanner, by bringing the pet»*
tinners into the Court of Justiciary I

RecoUet that this was a meeting ibr consider*
iag the propiiety of petitioning the legislature^
and that the aMeting would have been alto«
gtther nugatoiy unlees the persons then met
bad been allowed to state their opiaions t^ one
anotheiw In the first page of this indictment,
the panel is charged with baTihg wickedljr aad
leiooiously delivered '< a speech eootaimng a
number of seditious and inflammatory remarlm
WHi assertions^ eakulated to degrade and bring
iiilo contempt the Government and legislature,
and to withdraw thetelrom die oonfidence and
aibctioas of the people, andiofiU the raidm
witb trouble and diasention.^' Gentlemen,
wherever tbe peopk are ezpoeed to i^evaneos
they necewsrUy moat, when they meet to eoik-
sider the aieans of redrem, ezprem their sense
of theae giietances ; and I ask whether it be
possible to stato pubiie grievances, especieliy
grievances arising from sudk a source as over*
taxation^ without in soase way or other reflect-
ing on the Government. In the exercise of
our right of petilionilig agsinst grievancto^
these grievances must l^ atentioned ; and it
isimpomibie to mention thei% nr even to
allude to them, wilbout briuginff the Govern*
iMtit into discredit. For ttaaaiMe, let a peti«
tion be presented against over*taiatien> iHmfe-
ever were the causes of the evtt,^warB just
erai[^ustr-ttDa.veidafale miefortooeo» or mis-
•anduetin public afiair^-^ is lawful to stato
the grietunee. But can it be atated without
affKtingnwireorleM, or atannpting to aflect
tbe puUic opinion as ta the ments or demerits
«f adminiBtmtaeo? Every pubiie statemeni
aaspeeiina pubiie aAira has that tendency.
Bat are the people to be interrupted en siMh

rmnds, in the eieicise of their just rights .
is of the esence of their right to cooapiain

* Fysba Pahner'a case % How. Mod. St«
Tr, 371.

of grievgucas, and therefore I appr«^nd yo«
must disregard entirely those general expre**
sions in the indictment, charging McLaren's
speech as tending to bring the Government
into contempt. The petitioners felt griev*'
ances ; — they prepared petitions, and it is im-
possible to state a puolic grievance without
throwing blame upon the Government. I do
not mean to examine the question, whether
there really was any blame attachable to
Government ; for it is the same thing in Ihia
case whetherthe petitioners were right or wrong
in their statement. My defence is, that they
were in the fair prosecution of legal views*
Suppose no words to have been uttered but
what would, in other circumstances, have bean
considered seditioust their having had a right
object in view is a good defence. But every
sort of obloquy has been thrown on the petiti-
oners, without any notice of the lawful object
they had in view, as if their oliject were to bn
laid entirely out of consideration.

The legality of the object, and the situatiott
in which the speeches were uttered, are die
most important eireumstances of the case.
Every thang else is of a trivial and subordinate
nature. But let us see what the panel ia
alleged to have sai4. No positive evidenee
has been adduced to prove any part of bia
speech, eacept a few words at the end of tlier
passage quoted in the indictment, and, so for
as I have observed, you have onlv the uncer*
tain evidence of one person to tnese words#
I shidl remark upon the words in the indiel«
ment.

" That our sufferings are insnpDortp.ble» ie
demonstrated to the world.** I ao not any
whether their sufferings were insupportable or
not ; but th^ appear to have been severe, and
the people were met for the purpose of com*
ridering them, and to join in petitioning for
relief. Here I presume is no sedition.

'* And that they are neither te&^Mrary, nor
oecasibned by transition fix>m war to peace, ia
palpable to all| though all have not the coumga
to avow it.'' I dd iK>t say that proposition ia
palnable to every body. Some are dispeeed
to uiidL that the cahunity has been occasioned
in eonsecpMnce of the sudden transition flnoaa
war to peace, and some dispute that propo*
sition. Some are of opinion, that if we had
continued the wgr, at an expense of a hundred
millions a year, we should have infollibly so*
cured the national prosperity and greatnem*.
I shall not attempt to settle these points, nor
is that neeaaiafy to the present argument^ and
I beg leMFC to protest against the idea Aat 1
give any opinion ufM>n them at all. Periwpo
Mr. McLaren tnay include me in his oensnrti
for my wnnt of courage in not avowing mijp
opinion.

'' The fSaet is we are ruled by men only a<>*
lioitous for their own aggrandisement; and
they care no further for the great body of the
people, than they are subservient to their ow«
accursed purposes. If you are convinced of
this, my countrymen, I would therefore pu)

«Il

and Thomas Bairdjbr SedUion.

A, D. 1817.

[83

Ike qifestioii, «re jmi degeaerato enough to
bear it ? Shall W€^ whose forefathers aet limits
to the all grasping power of Rome ; shall we^
iFiiyMe fore&lheiaj at the never-to-be-forgotten
field of fiaaiKwkhurD^ told the mtghty EdWard,
at the bead of the most mighty army ever trod
•n Britain's soil, '* Hitherto shalt thou come»
and no further f shaU we, I say, whose fore-
^thtis defied the efforts of foreign tyranny to
eoslave our beloved country, meanly permit, in
CHir day* without a murmur, a base Oligarchy
to feed their filthy Termin on our vitals^ and
rale as as tliby will ? No, my countrymen."
A oommentary was made on this passage
though it is not proved that the panel ever
spoke it. The prosecutor takes it for granted,
without evidence, that the words were spoken.
I am, therefore, not under the necessity of de*
fending these words. But are they in reality
so culpable ? Axe they seditious ? They are
mere words of course, in expressing those pub-
lic • grievances to which they refer. Every
child knows that they are the common and
hackneyed terms used by petitioners for public
reform^ and (excepting one or two allusions^ in
which there is evidently no sedition), if they
are. not tame and feeble, they are at least neither
seditious nor inflammatory. Every word ap-
plies to the professed object of the meeting in
petitioning, and to no other object. The pro-
secutor applies some of the words to the kmg,
but this is a misconstruction quite unworthy of
my lord advocate. Ministers, and the pos-
sessors of borough interest, are the vile Oli-
garchy, who are said to feed their filthy vermin
OQ our vitals, and rule us as they will, and this
attack was justifiable in the way it was made.
What would avail the right of petitioning, if
there was no right to petition against his majesty's
ministers and their partisans ? Ministers may
be impeached in parliament for their public con^
duct, and they may be complainea of by the
people in their petitions. Are petitions to par-
mment against ministers to be punished ^
sedition ? What have we here ? The opinion
of the panel Chat the jninisters have not acted
in an honest way, or as ministers ought to do.
The opinion is expressed a little strongly, but
it does not go beyond legal bounds. The pe-
tition was afterwards laid before parliament,
and was received with respect. Now the ques-
tion before yon is not, whether the ministers
are culpable or not — not whether lord Castle-
xeagh or Mr. Vansittart might bring an actioo
lor a libel or defamation— >but whether there is
any sedition - in this speech. I ask you,
imtber there is any sedition ip complaining
of these ministers? Sedition is an attack on
the sovereign of the state— an attack on the
government, not on the ministers of the go-
▼emment. You may attack the latter in any
way, without being guilty of sedition.

jBot frrther, as to the passage about the
Ofigaichy. It is generally understood that a
lew penonsy not .exceeding 300, are possessed
of an influence in the House of Commons that
It very pernicious to the state. This is the

voL xxxni.

Oligarchy, the government of a fhw by uneon-
stitutional Influence, alluded to in the paner^
speech. Is it sedition to take notice,, even by '
allusion, of such a public grievance ? Is this
sedition? Against whom is it sedipon?
against tlfte King? against the Lords? against
the Commons ? agaiast any branch of the legist
latore, or against the legislature taken as a
whole? Jt is sedition against no person or
legal authority whatever. It is, indeed,
directed against the Oligarchy itself, which,
in the opinion of the petitioners, is the
worst enemy of the King, Lords and
Commons. The King, Lords and Commops
ought to be independent ; and, if an uncon-
stitutional infloenoe rules over them, is it se-
dition to complain of that influence P Every
friend to the constitution will complain of it,
if he supposes it to exist. I apprehend there
is nothing in this part of the charge; and while
M'Laren denies having used these expressions
about our rulers, I say there is no sedition in
them. I would say so, even if the words had
been used where no petition to the legislature
was in contemplation* But, considering that
^e meeting was called for that purpose, *
nothing can be more unquestionable thaa that
such language was not seditious.

I come now to the last of the words quoted
in the indictment, and I hope to satisfy you
that there is nothing seditious to be found in
them. Allow me here to remind you of
McLaren's situation when he made (his speech.
It has been proved that the task of opening the
meeting was imposed on him, contrary to his
inclination, and came upon him rather unex-
pectedly. It was indeeo proposed to him eight
days before the meeting, but he was unwilling
to undertidce it, and immediately before the
meeting be pressed Mr. Samson to take the
business off hb hands. An hour before the
meeting Mr. McLaren was again urged to open
the business; and being in some measure
compelled to it, he retired for a very short time,
and made some notes of his short address to
the meeting. You will see in tho whole pro-
ceeding tlve most evident marks of haste. It
is not proved that the last sentence was written
in his notes. On the contrary, it was not
written. He was placed on what is called the
hustings, and delivered his speech during a
storm of wind, rain and hail ; from the noise
of which, and particularly from the rattling of
the hail on umbrellas, it was almost impossible
to hear what he said. Besides the words con*
taioed in his notes, part of which he spoke, and
part of which he omitted, he spoke other words
which. were not in his notes.. What these
words were is uncertaiD,«as they could not be
perfectly heard. A single witness told you be
heaid and recollected them, though he could
not reoollect any other words of the paners
speech. There is no great reason to rely
on the recollection of tiae witness, though
there is much reason to presume that the
words had not the meaning given to them
by the public prosecutor. The words in
G

1071

«7 GGOltGfi til.

Trial^Attmmdtr M'Lartn

(10*

•rdkr !• point out from reotat «nd domMit
aotboiity> how tlearly tbo doctrine of renstance
it tecogntsed among all who hai*e ttndied our
oonttttution, and h^w boldly it is held foithy
Ofan 4>y the official adviMvs of the crown, at
th^i ultimate resource which the eonslittttion
allbfdt when an extrema case shell aivive.
flow, no nror^ extreme oase can be soppooed^
than that of the prince setting himself m op-
yiosition to the voice of bis whole people, and
lifaat is the onl^ sense which cen be put on tiie
fMSsage here in craestion. Resistance is a la-
mentable and a dreadful remedy ; but h may
lie a- necessary one : and though we ought to
tsdce it for granted that the necessity will never
decur, we cannot allow its existence or its
#ficaey to be qaestioned. ]t is a tnie, bat
awful maxim, and not fit to be canvassed irre-
▼erendy in conversation, publie speeches, or
|pcA>Keations. But in d«0enoe of my client, I
ai^ that it is a tree maxim, ' and that there is
oeitber treason nor sedition in stating it, as is
dome in this pamphlet.

I shall notfifttigue you by going over all the
jfmssages whit^are cited in the indictment,1)«(t
BhaH only trouble yon with one or two, in order
to settle die sense and constraiftioo, and do-
e^rmine what was truly and really the scope
of the whole discussion on this occasion. You
were told that the qoestion lies here (and I
agree that it does), Whedier, upon the whole,
under ai pretense of petitioning, it appears
ther^ was a purpose ui die minds of these
«eople not to obtain redrem, but to excite se-
dition, tumult and confusion from one end of
tfhe kingdom to the other. That is the ques-
tsob truly and -substantially; and yuu are not
V> dwelt on detadied passages, without tahsng
tnto view idl others -of a hem ambijguotts de^-
•eriptiott : — ^you are to judge ofthetmportof the
whole.

' One of the dtations- in the Indictment is,
*That the House of Commons b not really
what it is called ; H is not a House of Com-
mons. At present we have no rspresentatives*"
Now this seems to me just such a way of stating
the thing, as when a person nys, This is no
bouse — this is no dinner — ^this is no speech,
meaning it is not what it ought to be. The
mode of expressing the opinion is^somewhat
strong, but mat is its roeanrag. It is said in
the pamphlet, ^And*a House of Commons,
but the latter is corrupted ; it is decayed and
worn out ; it b not really vrhat it is called ;
it is not a' House of Commons." It is then
explained, '^ The House of Commons in its
original composition consisted only of Com-
mons chosen annually by the universal enffrage
of die people.** Ihete is the difference be-
tween what it is and what*theperson speaking
conceives It ought to ,be. when we wish to
say a thing is not what it ought to be, are
sometimes express our meaning by saying it
!s not at all ; and when a person means' td say
that the representation or the people is not
what it ought to be, he may naturally enough
express bis meaning by saying that (her£ is no

representation at 'all. Ihe statement of 4his
veiy opinion has ofien been given in this way,
and has never been challenged. But it is not
on my authority that I mi& you to take thia
explanation^ It Is given in express tanss'ife
the subsequent parts of die very speech froea
urhieh the expression is quoted. — ^The orator^
after some ferther disseitatiun, goea on to sty,
''Will any man, then, possessed of commun
sense, say that this is a House of Gommoaa
agreeabie to mtr CemtUuHony or that it is a FAfft
representation of the peopled AH this, vo«
will observe, is in the same speech, and it
must, by every rule of construbtioo, be taken
along with what went before to explain and
modify those more general expressions.— f^iWl
same explanation occurs in fife other passages
of the pamphlet^-and leave no room wbatevev
to doubt, that what the omton meant 'wmi
merely that the Hoase of Commm» was B«t
what they wanted, and was not ajakr md e^nal
representation of the people^ Is it sedition to
say so ! I for tme 'think ^e present lepwscai"
ation a very benefieial one; uid though It
might be made more agreeable to theory,!
should not expect great benefit from someeC
the change* which have been proposed. Btft
caA -it be cidled a &ir and equal repicsentatioti
of the people in any sense of the word?
There is nardly any person in Kilmarnock who
possesses a vote. — 1 do not say -there iaany
disadvantage attending the prmnt represent-
.ation, but other persons may thiidc difterentlr;
and sure I am tnere are plausible grouaids for
any one sayingp, he womd like to see the ffs*
presentation reduced- nearer to the theory of
the Constitution. Upon sjrstem and prrndpla
the representation ought to be altered in somo
parttcidars, though, upon tike whole, I do vec
expect the mtgbty erocts from any aiteiutioii
which some people do. The passage In que»->
don is a short, raetorical> pithy, foreiMu way
of expressing the speaker^s opinions ^t ha
obviously meahs- t&t the representation is
unequid, that it is not sufSeient, mid not
agreeable to the theory of 410* Constitution
That a man should be prosecuted -for eedition
for appealing upon such a point to the nutlNH
rrty or Parliament was never heard of before.
But it has been the ftte ^ the panels to be
accused of arraigaing the Conrtitotion, wtrile
contending, as they thought, for its restoration
to ptirity and vigour.

I now turn to flie definition of sedition in
onr laH^ books. To commit sedition, you
must, in direct tetms, or by unequivocal insfn^
nations, excite discontent and disturt^anoe
against the present state ahd cofnstiCuted atf^
thorities of the country. Mr. Hume, «4io ia
not supposed to have looked upon aedition
with* any extraordinaTy lenity, expresses him-
self thus: ^It reaches all dmse practices-,
whedier by deed, word, or writings or of
whiitsoever kind, which are Suited and im
tended to disturb tbe .tninguillity of th^
State;— for diapiirpose-bf pfodttcing piA>l§e
tioi^le or commotion^ and moving fait M n«

100]

ami Ikomi Sairdjbr S^dUion*

A. D. 1817.

1110

j«iy!ft iolfeoU to ifaft'diiiti** mHteac^ or
rabveni«i of tW«taliisht4 Oofenmeiii and
lanriy or iettled 6mh and order df duiigt/'

Ben MB^ bj iriMft.iiialiMoeB and cpumofdes
lio iBaMntrs «Dd caplaiot km defimlion.-*In
evoij oe% yott 'will olntrva^ W Jdikcs.it an
indispenttoie qoalifiaition that there thoidd
be "aaMe dlracr exhertatinB^to the people to

if f«. Hum. ie leAed tmoa as a great advo*
te the: cAwxi in 'hi* obeervatiOBa mi
Thu tiMB ut wUdi he vrole bii
mi thadavoft thiaiohgeet aie tiip^ieeed'
to taie.girea a btaa- 1» hii .'opinBnMv of .whiaii
he ftraa piehably iwiaieihie. There iaa pra*
g epiaioB at 4etea' to ihis effect, in the
.OM of -thb ■daad'eepaeiaHgry-^aQBfQBiidcd
io all paebeUilj^'tet cMnnly veey geocndfy'

(' Utty^ it, % ceaneoQ oaiaiea

faia-irealiee; aad oetlahd^r hia ar*<

laeanied aeluraeH

go; ' turn heok waa pufaliihed -leoeaaly

ei theieoantiy^ie^

*" r£»r 2SS:;

impul 'hia/opiBie»oD'theaohjec>j
Yei^ alriflifar 'ind. wgeroaely- aa* it iaa« he
thrtigii he ^edowp th> iawr^ it wiii he^eedt
ha gmipiqg!:aBd[i compKheaMve
doea-.net iaehide the..Ga« oCbthe
pMi%» bet. tint eeefT'-ooe efhia

otMbe.peefde^iectite tor lh«Bieelreieoaie< pert
of thet pearee liUeb beloegs to^ other ihanda.
Bet ia -the* pteaeat cae^ thaie are -oe waade

'idee, te here bcea aeteftaiaed

iM^aotteef the

jopen aa oedinatiny

pnrpeae. There are 'word%indned^

leeuediet the' idea^sf ae^

ilncthe.jpeachoofi Ma. JMid«

^jsaaeiew $»dgfimf kkead9%
mMMhon Mtfaflnae.verfti/tdrf^
IfamthJeipieniiieytathepett ^Jthanffioiaat
djnetnaiaphutriat ee.'aaa<hear ^ ii bcmMa:
Ibeoietor aeswen hiinaelfiths%(¥ItgiMrca
c ngAii Al %. aoB^Uiti ^fm^ t*e Mkig end
Mk JbaBBi ajT PMioeraT/iei^ h riffbt to be^
bend^eed febaned ^■tarwe^ieier. ' Let oe
thi»;dey "tabiMe the pririlegeidf oelr f^
rioasCooetitvtion^ i^ vt- kiy mtr peiiiium te>
.^reAe^atod aeeeit oii^ figbteat Men^end aa
firitoos;** If tera aflQr thing eqemleat' ia
aeditioB here.

I sight^pat the atafter abo to die test eC
wbet the pmionaM: did» Did thej oroaoise
eay sodhtwa te.eomepoed iirth? : Didahcv
afflitte thinlie»tadi thei Ufaited IhshiHBP
^h PhUfaai^deeiaie their ^^e^nirittaes pam
aieeet^.er jpmHde^iap ee^ waj^fbetbeirfetuw
ptnefts^ingBh-.tlB'-ahertP arfaet did 'tfief do^r
ThejKdidK: jest ullat. they ytofterad teido(,«**
thi]r pet^oDedPashaneet, and. having sent off

liouw quietly- to tlnn
Mo mrelBig.- hap ever

at RilAamedi sieoe the eTeeiiation waa nade
in Dean-Fbrh; aad if that ia the way in which
the people are to attaviala their diatresses, it ia
at least aa inaeeeet aameniag npacoiaa ai the
gin-shop. Bot we most go berk to our eeatar*
Ue prooteda» '* let oe^ tl^etelbraf (aseerery-eonp
stiiMtional aseans toi reeeaor oer ieat tightly
rights which oer ancestors ci^oyed aad eacr^
cised; let na.bt finsi asMi neaMmons iaifrnr
resolres, that we mU not hcdsMived of oer
pHvifegea any leeger, that we eiaiai. theei aa
oar bvtfarighty and hyowr qmUmid .ectttftHm
tkmol esedM^ shew oair enemies Umi we iUtt
ommckjf^ r^fffimmn, mid eiarpstiee^.and thai we
want nothing bet what is lor the gsneral good
of the ceeatfy/' Bet tbescv it baa bean se^
are pteteeces»' pot on to disguise the real
^okedness of their designs. 1 tbink yoe eae
iw.ne dengar. Gentlemen^ of belieriag thnh.
'Whaterer feutts these pdeple may have oooi»
tniHed^ 1 em eeeddent yon wiU not find them
gmkyefhypeorisy. My own oaeviefion is^
that they have apdcen nu>ra rselentlir than they
intended ; but I am- sure yen wtU give tha*
credit et least -for all the moderation they pro^

fees.

Thcie is a great deal more to be said on the
other parts of this pebhcation. Mr. Cmig
makes aa do^ucat oarengoe; There is a
great- deal of poetry in his steech. ** Being
then, my bretmreny impelled by B«tessity» let
us eppraach, displaying reesoa and resolutaeaa
like -men who know tWir duty tiul their ob^
Ject. Yea, witb these- and similar princinlea
ma^ we- nndauntedly ge forward^ and Hk*
tegitimala aens-come to-te years of mejority^
let as in the nacM of law end justice demand
the inestimehle end dearly pnrohased beqeeat
of our woithy progenitors^ "that we may enjoy
it oiMBeleps^ and transoHt- it te a landing poa^
terity^ And 30 aol, Aweiting the fiat of hiak
who»»agmdicd> hot the pcmona of asee» bvt
htmndnili^fte the cries of th4:pecr, and ^ndeth
the caniaef-4ba distiiesaad^ nlwaTa^mtingior
oor toeonmgemena Me $imem"0f Ms mpirtm
ee<» HtJdsiereeasded for our instmetienyWdelKir
ket ineuMt dtmmA pteteikd with the uiiust
judge, that althongh, witiieut any regard to hie
high obligations^ yet wae not totally destitnte
of that piftnciple which aDakea ell bttnan kind
qnake, when reminded of- neglected duty.
Mny we be actuated by the same oonrage te
eo aad do likewise." Here^ again^ tou see
how diatinody their iriews were limited to the
peeodhl iteratten of petitions.

The purpose of the Aesolutions, too, haa
been cntirmy misnndMetood. In the Mh it.ia
saidt ^ That the dibt; now amewiting Co nearly
l'jCNK>>milliDna^.ba*bedn^con(racted1mthe pro»>
seeetiod-of -onqust and-nnneceaaiky watVy^by h
odmspt admihistMieai^ enifeMUr ''supported
bymrlioeae .of ComaMdS) v4eah conjidt be
said$ < with' enyt^jnsiaeef) ft) tee './fair' eetf apni
ft^rCMntalismiof' ttte^icenhtifyt buV.irbiidi 4&t
themmet part' is' cdmpeted'of'^nHir pet In by
a berough fetatiuny who hihr^ruanrped'tbevights
of the ^ple^^endwho bymaiae

Ill] £7G£0R6&III.

Trial ofAlmmier M*tAr«n

inn

«otttrited to retttrn a majority of niemben of
that House/' Th^ fiicts here stated are trite
and stale, but the passage is worth noting, as
aUbrding, atfd that in the most anthoritative
and ofi/v deliberate part of the pnblicatton, the
most dear and complete eridence of what
Ibey meant when they used ezpresfions Titu-
perative of the present House ot Commons.

llie 9th Resolution is, ^ Being, therefore,
impr^sed with the tiwth of these Resolutions,
tiie meeting lesoHre to present petitions to his
Royal Highness the Ftince Regent, and to
botn Houses of Parliament, requesting his
Royal Highness in particnlar, to attemble Por-
luuneiU without delay; to call upon it imme-
diately to adopt such measures as may tend to
restore to the people their undoubted right in
the representation,— to order, in the name of
the people, an immediate reduction of the
taxes* ai\d the standing army, the abolition of
all unmerited pensions, sinecures, grants, and
other emoluments, as the surest way of esta-
blishing on a firm and lasting basis the rights
of the crown, and the privileges of the peo-
ple ; and that in all time coming, no person
who has an office, or place of pront unaer the
King, or reoeiines a pension from the Crown,
shall be capable or serving as a member of
the House of Commons. 12. Wm. III. c. 2."
It is quite plain from the context, that it is
ike whole Parliamenif and not the Prince, that
is called upon to order an immediate reduction
of the taxes, the standing army, and so forth ;
—so that the eloquent exposition of the lord
advocate upon this passage was founded upon
a manifest misconception of its meaning.

I have only to cidl your attention to the next
resolution, which clearly shows the scope and
extent of their views and threatenings, ^ And
the meeting hereby resolve to make known to
his Royal Highness the Prince Regent, and to
both Houses of Parliament, that thegf wiU not
ctate tending t^i <me fetOion efUr another ^ ami
ming every conttitutiomd meagare insured to
them by the laws of the country till they obtain
the restoration of their rights auul privileges as
men and as citizens of the stale." This is the
only practical resolution they came to ; and
even this was not acted upon, for it appears
that no other meetings have been, held, or pe-
titions transmitted fVom that time to this. In
the same way ' the meaning of the words,
** Shall we bear this,'' or similar terms, is,
throughout explained in the dearsst and most
precise way to lie, Shall we bear our sufferings
without complaint, vrithout munnuring, with-
out stating our g^evances by application to
the proper quarter? ** So far Irom ceasing to
complain,'' they say ** the damour of our cries
for ledms shall ne#er cease to ring in their
•ars^ till the abhorrent temple of oonruptiOB be
annihilated, and the banners of freedom vrave
from the heights of Dover to the mountains of
the Vorth." That is a lofty passage, and foil
of eloquence certainly. But in every one of
the speeches, in whidi it is anxiously stated,
not only that there are grievaaoes, but griev-

ances which could not be bonie, ^rhat do they
propose to do ? Do they propose to attadc
the throne? No; they merely say. We sdaU
apply, like the importttnate widow, and
reiterate our clamour till we waary you, or by
the force of our reasoning, prevail over ytmr
prdndices.

There was one part of my leanied friend ther
lord advocate's speech, of vrhich I am really-
unvrilUng to ssy exactly what I think, or ex-
press the feelings it excited. I mean the pas^^
sage regarding the army, .vrhen he spoke as if
there had be«i a disposition entertained by
some of those at the meeting to induce thr
army to rebel against the government. The
only libel I have heard to-day is the sup-
posing, for a moment, that such ah intention
could be entertained, and vrith any the
slightest hope of siibceBs. 7[he policy of keep-
ing up a standing army was long the subject
of discussion in parliament, and the dahger of
it to the constitution was much insisted on,
while, latteriy, such a danger has been lean
apprc4iended, and the great eonsideration m
questions regarding the army has been the ex-
pense which it necessarily imposes on the
country. But whatever opinion may be en*
tertained on this subject, there was no die-
ciission at this meeting on the expedioicy of
a standing army; and Sie passage in questtoa
is most manifestly intended merdy to meet
this common and almost obsolete Whig topicy
and to show that it was not from that quarter
that danger was to be apprehended. I say-
that this was obviously its meaning, if indeed
it is not rsither to be regarded as a piece of
mere dedamation upon a very popular and in-*
viting theme. Nobody at present thinks iU of
the army: on the contrary, it' is scarcely
possible to speak on any public subject, vritfch-
out taking an opportunity of saving something'
in the praiw ot the army; and .to endeavour
at a piece of eloquence in its favour ie tlie
ordinary style of writers of all descriptions.
The hope of seducing it from its duty and
allegiance, if it were not too wicked, is mr too-
absurd to be entertained even by the moat
desperate conspirators.

In another speech it is said, " It is higb
time, when they have robbed us of our money,,
deprived us of our friends, violated our rights^
and abused our privileges," — it is high time
for what ? to take up arms and overthrow the
government P no such matter— only ^ To db-
numd redreu far such treatment,*' The orator
then goes on, " But, methinks I h^ar theaa
say, we are determined to give no redress, we
have huddled ourselves intoplaces> pensione
and sinecures, and we are determined to hold
them. This I think is thdr language." Wdl,
wdl, what then? In ihis desperate case,
proceeds thia seditious orator, ^ We must seek
redress from another quarter ; we wmtt petiOom
hiirdyaihighnett the Prinu Rtjgent to remove
our grievances ! to give us a psriiament of our
annual choosing, yUndk will represent us tn a
form agreeable to our vrisbes^ and i^ceahlft

1191

(Uid Thomas Bairdjbr Sedition.

A. D. 1817.

[114

to the constitiitioo." Is it said that this is
hardly a coTer for professed rebellion? In
answer, here is another passage, ^* The unani-
mity of our sentiments and exertions^ agrtedbU
io tke constUtUion, will once more dispel the
dood which eclipses the resplendent and
animating rays of liberty, and will again make
her shine forth in this once happy country
with unimpeded effulgence.^ The last speech
ia the pamphlet ends thus : *' Permit me now
to conclude in the inimitable language of our
celebrated bard, and friend of liberty, Robert
Boms — May tyranny in the ruler, and licenti"
manea m the people, find in each of us here an
ioexorable foe.-'

There is another passage where allnsion is
made to re?erend hirelings, upon which the
lord advocate bestowed his eloquence as need-
lessly, and, I am sure, with as little effect as
on the passage about the army. In that quarter
of the country, a tendency to fanaticism
rather than to irreligion might be expected ;
as it was there that presbyterianism first struck
root : and in this very pamphlet you will find
passages similar to those employed by the
CoYenanters in the Tales of my Landlord.
"^ It is there you will see bow Egypt flourished
under the wise administration of Joseph;—
and what the heard-hearted and inquisitorial
Pbamioh did for the. sons of the Nile ; — it is
there you will see what Solomon did for
Israel ; — ^with what Jeroboam, Nebat's wicked
son, and odiers, brought upon the (now)
wandering sons of Jacob. It is there you will
see what Nebuchadnezzar, £vil-Merodach,
and fielshazzar, did for the now extinct Baby-
lonians ; — ^how Persia rose under Cyrus, and
sunk under the bloody Cambyses," &c. &c. I
am confident, indeed, that you cannot look
into any part of the publication, without
seeing great reverence for scripture/— « calm,
temperate reliance on the assistance of Provi-
dence in all good acts, — ^a reliance to be
founded on good moral conduct and prayer.
The term, ^ reverend hirelings," employed by
tliese rude orators, might be considered per-
haps as not undeserved by certain clergymen
who leave their proper duty for making pro-
selytes in politics ; and persons who do not
agree with them might say,- with any purpose
but an intention to bring discredit on religion,
that they had been hirelings • in certain parts
of their conduct. Nothing is more innocent.
The attack might perhaps have been made in
a more decorous manner, but surely there is
no pretence for saying here, that there is any
design to excite a spirit of irreligion.

I have now gone through the publication ;
and I leave it to you to determine on its na-
ture,--only reminding you that it is a funda-
inental rule of law, that a seditious intention
19 necessary to constitute sedition. You will
therefore consider, whether the object of these
people was merely to petition parliatnent, or
whether, under the false and assumed pre text
^ petitioning, their object was to excite sedi-
<MB aiBong the peonter*aBd to spread misohief
VOL. XXXlfl,

and disturbance ip the country* In judging of
this you will remember wliat you heard in
evidence as to Mr. Baird, of whom you werjg
told that he would be the last man to join ia
any treasonable or seditious enterprises, and
that he was accustomed at all times to check
the folly and infatuation of his neighbours.

I have already detained you, I am afraid,
unreasonably long, but I cannot leave the sub-
ject without taking some notice of the prece- ,
dents respecting trials and convictions for se-
dition which have taken place in this Court .
They are all of very recent date, having oc-
curred within the memory of most of us ; I
believe there was no trial for sedition earlier
than the year 1792. There are, indeed, some
ancient cases thinly scattered in the records of
the Court, but in all these the crime was ac-
companied with other offences, by which the
sedition was aggravated. There is no case of
mere sedition, earlier than the date I have
mentioned. That date must strike you at
once as affecting the character of all those pre-
cedents. For it is never to be forgotten, that .
they, one and all, took place at a time, when
the minds of Juries, and of Courts, and indeed
of all persons in the country, were in a state of
unprecedented alarm for the safety of the con-
stitution ; at a time when acts and expressions,
which undoubtedly would not have been taken
cognizance of, in happier and more serene
seasons, were considered as of the most danger-
ous tendency ;--at a time when this country
had recently engaged in an alarming war with
a powerful enemy, — a war, not arising from
disputes about territory or points of national
honour, but which, proceeding from enthu-
siasm and madness on the one hand, and un-
defined fear and resentment on the other,
arrayed every individual in both countries in
personal hostility against every other:—- a war,
indeed, proclaimed against all established go-
vernments, by a coyntry whose whole interior
exhibited a phasis of confusion and crime, and
breathed forth a pestilential air, which threaten-
ed to spread the contamination through all
the neignbouring regions. We fought not, as
in former wars, with men formidable only by
their numbers, their skill, or their courage, but
with men whom we imasined to be armed
with a deadly poison, and zealous to spread
contagion wherever they went. In tliese
times, not only was there a raging war with
that natjon, which was loudly threatening an
invasion of our. shores, — but it is impossible
to deny that there was an established centre
of rebellion at home, looking up to France as
the great redresser of wrongs, asking its assisV
ance to rear up every where, the cottage on
the ruins of the palace, and to carry into exe-
cution the most visionary and absurd plans
for the regeneration of society. Coidmunic»-
tions of a most dangerous nature were pasi^ing
between the two countries, and the crisis
seemed as imminent as any the world cve^r
saw. Such was the distressing condition of
this eountty^ tl|at it was impofsible to remit

rr53

57GEdRGBMlL

Ttiftl of Alexander M^Lnttn

CIM

for'an instant, tlie mo^t Watcbftil police over
the bonduct of the disaffected. And what was
kctually their cdndaqt in tJbat season of general
alarm P Why, they were found in innumerable
multitudes holding 'meetings thronghout the
whole land, — not going out one da^ under a
feelhsg of distress to petition the legisUture, —
but forming themselves into permanent dnd
affiliated societies, corresponding with one
another throughout the whole kingdom, and
Ivith societies abroad, and smitten to such &
degree with an ambition to imitate every thing
in France, as to adopt French names and ibrms
in their associations. In short, an organised
system of disaffection was formed^ calculated
to strengthen the hands of the enemy, and to
unite all the domestic desperadoes that could
Be mustered against our own established govern-
ment. Such wajs the condition of the country
wben the trials for sedition were first brought
on. In' the course of ten months, societies
had been established, not only in every con^
siderable town ip Great Britain, but in every
Kttle village, which, as branches of the ffenersu
society, appointed delegates to it. I tnink I
km not exaggerating the condition of the
oountry at that time, with a view to suggest,
nor do I give this as an apology for some of
the proceedings which then took place ; but I
state it as it really was, that you may know
the true character of those proceedings.

The first trial was that of Mr. Muir.^ It is
with pain I recollect that case. With all due
respect to the Court and the jury that tried it,
]E cannot think it a precedent to be commended.
1 cinnot but consider it as an occurrence to
be lamented — since unfortunately it cannot be
Ibrgotten. Tet, in that case there were many
circumstances of aggravation, of which there
is DO shadow to be found here. Mr. Mnit
was a member of the society of the Fiiends
of the People in Kirkintilloch and in Glas-
gow. He had gone to France, where he
Tematned till aft.er the war was declared, fie
came back to Ireland, and assisted at several
Wetings of the United Irishmen, and then
return^ to this country, when he was arrested
and brought to trial.^ Ilie charges against him
were relevant. He was accused of having
excited the jpeople <o disaffection to the king
and the established goTemment t he was ac-
cused of having industrioiuly circulated the
work entitled the Rights of Man, and other
publications of a pernicious and seditious de-
'tcriptioD. I am old enough to have attended
Ibe trial f I was not then at the bar, but I per-
fectly remember the leading features of the
case. I think the evidence was scanty ; but
still the charge was relevant ; and if the proof
bad been satisfactory he was guilty of sedition,
and therefore liable to punishment. At that
tim^ there was a combination which seemed
pregnant with danger to all existing establish-
ments,— a combination formed by societies all
over the country, who appointed deputies to a

• •.41ldw.MtHi.St.Tt, tiT.

gen'etttl meeting. The ciitmlattoii i>r ioM
works as Paine's Rights of Man Was at that
period likely to produce mncH evil. I believe,
however, that feelings Of compassidn 'for Mr.
Mnir were general. I hope they are perfect^
consistent with ntter detestation of sedhion:
I "believie isentiments of regret fdr the neCes^ty
which led to his .prosecution and conviction
were universal; and I say, Vrift all due snb^
mission to the law and the verdict of the Jnrv^
that very many loyal subjects thought there
was loom for a verdict of acquittal^— that the
bulk of the nation regarded the sentence as ikB^
ilecessarily severe.

The next case was that o? Fyshr Plilhier?*
Re was also connected with the Friends of
Freedom, and had circulated a political haaft^
bill in Dundee and in Edlnburgn add^ssed h>
jthe Idwest people. Hundreds and hnndred^
of 'these, addressed to all and sundry,^had beeti
by him committed to the winds of heilven ; and
surely to sow such doctrines broadcast in ^\$>
reckless way, without pretence of anv'speciiil
end, was criminal and punishable. 'Ine hdtid^
bill contained much inflammatory niatfer,'atiil
was proved to have been circulated by him.
ft was addressed' to alt and sundry, and at m
time when the minds of the people were ia' 1
dangerous state of irritation. No direct Te^
medy was proposed for any of the evils com-
plained of, ana the only obj6ctinvieW seemed
to be a dangerous usurpation of j^o^er. I"S^
there was real sedition in that c^e;^d thkt
it had no resemblance to the present, 'whiffy
there Was merely one meeting, and one set of
speeches, for the special Object of 'pl^&pafing {^
petition to parliament-^wiUi the {Trepanttion
of which the-whole business actually cidSed.

The next and the onlv other cases WcyeihttsD^
of the members of the British Coki^n^6o*^.
Skirying,t MargaTot,J Gerrald,§ and othet^^
and certainly the existence of that tfttradidi--
nary association gave a peculiar character ^to
the whole of these cases. That foi'midalAe
body, you may remember, was composed of %
set of persons acting as delegates from the re^
motest parte of Great Britain, and who hadFM
lawful cusiness in this place, -and no dtB^
visible purpose (han to excite disaMe^doii^^
who haa no such thing in view as petitionitijg
the legislature^ but who wished to organise a.
power independent of it, unknown *to 3ie con-
stitution, and incompatible with the existence
of its great institutions. They bad priv)Eite
meetings, and committees of emergehcy, isotoe
of which were only to act in the event bf a&
invasion by a hostile force. £ven taking th6
statement which . was made b^ those pe)rspns
in their 6wu defence, and looking to tiie'si&ai>
'tion of the times abivad ahd at home,* it i»
impossible to doubt that it was ne<^esstir^ to
put down the Convention, and to inflict ^ '

: \ f f

• 2 How. Mod. St.Tr. 237.
+ 2 How. Mod, St, Tr. 391.
t 2 How. Mod. St. Tr. 603.
\ 2 How* Mod. St. Tr. 8d3.

and Tk9m<u Baird/or SedUUn.

A. D. 1S17.

jwhmQnt on SQch as Skirripe. I need |o no ;
mithier kd^Q 4«taib, bu( shaU loerelj mention
that tbeie ipia real, actual^ and palpable seji-
tipu u^ that case. Mj burpos^ ln,^lluding ^9
them, is to cbntnat them with the pr,esent
m^; ^ e^ in thosija tiiq^y and under all
j^^ deplppiblf ^itciunstajices ^liichl haye
ni^jpiKta, tkis c^fi voutd bare t>^en Tiewed
▼eiy did^i^tly fyom^ ti^e cases then tried.

The tpalof l^bert^n aqd Berry* tool^ place
jU a \^v^ tu more critjioal than th^ present.
Zlier wm tri^ for luinting and publishing a
bpok entitled Tfi6 Pojitiq^l Progress of Scpt-
Imj^, whldtif 9^X0 hurt^ tejidency, went far
l»^ond ik^ pauppblet now in question. $uc1^
fpa such t^e| were said to have been illegally
mposed, and the copstitutiop held out as ^
foere con:g)irac7 of the rich aghast tlt^e poor :
]r?t tne punisrument infllcte4 was thref mooter
ipamisoxunent to one ^f th^ip, an^ six moiitlif
to the otli^er. There lyere ^^orse cf|^es in 1793.
|n one, I pean t|i^t of Norton a^xd Anderspn,^
^t jm proved that persons who were pieinbers
at the society of tl^ Friends of the People
bad gone iRto the cs^f — insisted that several
ipf the ^oldieri should j[oin the society — and
giveuyaf a tqast, George the third ^n4 lastf
gnd aap)^a^ou to a)l crqwped heads ^ yet,
ifpan ^cl^ Verdict qfcpnyiction, nine months'
imprisonment, oi^Iy, ^aj in£icted« Twp qa^es
occi|rrie^ in 1802. In oue of them, under very
gfpss ciicumstaJDces, for the man y[as a soldier,
4i|d had said he was sorry the king was not
k|iot, and tha^ l^fi could sc^ his neart^s l>Iop4
|)fi^*^aybnet| th^ punishpient intficted was
<^ ino^t)^*s' itQpnsQppp^ot^ and banishineni
nim ^cojtUnd for two years. The fi^er ^M
^ c^ q( jpi^ J^firjey (I m sorry that should
batf^ Imn tiie naine^ who, for wishing de-
Hfractipi^ to ^ipg, que^n, and royal family,
^ffttef^ fhx^ jpontKs' imptisdQment.

' I liave gttoted these casef to show, that ^ven
il^'tifQ^ ffjien gfpa( rlgojir ^vas jfiecesaary,
fl^^f fipch wor^ than th^ present werf
^tmieptiy vieif ^ j j^^ ^ say^ considering that
we fiaod ppw iQ ▼ery difierent times, and
||ij^ ^ P^PJQ jf ^[ppainocV ha4 confessedly
no miction of holding ponventipnf composed
0f«e!e^(e^irofiiirariops quarters, or of pro-
Ip^ljpiiiig s^diiioii in apy w;^y, but were hungry
aiiimtf, Vho Qi^Iy m^t op one occasion to pe-
titioQ for something, they knew not what, which
th^ tho^pl^t ^ap)^ i^ord them relief, and
Bpver ^ar^9nred any purpose of exciti;ig or
fjmf m ^ebeUioo, but continued to prosecute
lAfsir yi^f^ by ^ onstUutioA^ pieans ; can you
itmic^^ that if the paoiie ^riot^s cases which
{'hay^ bpfD con^djeriug i]5ceived such sjigjit
m^ce, thii present case ^buld, eveji then,
iaf e been ^shongbt worthy of anv punishpaent
a 9^ pr th^ ^jiy iJ^e^^irtber shou)d p/p^ oe
j^m^ than ^^mg'.tfe ^2^^\s Ifoipe a jiftle

M«w^l?i*h^, ' 9fff Tj^'^T %^*fned,' to hp
jn<>fe cautib^ on jspy Ifilur^ occa^oin T

t ?low. ^. ^. tf, f.

L119

In urging this to you, I think I may refef
to an authority wlach cannot be either de-
spised or avoided — I mean the authority of
the wfaol/e kingdom, of the whole law, of the
whole Q^jesty and power of the king, ministers,
judges, and legislature 6(^ England— of that
country which has had the longest experience
of freedom, and has learned most thorough])^
by that happy experience now little real dange^
there is in the aisconteiits, or even the occa«
liohal violence of a free people. There, it
would appear, (hey are not so easily alarmeq
—not so easily frightened at words, or so apt
to suppose that the constitution can be brougui
into hazai'd by a fi^w intemperate expressions.
I 4^0)^^ therefore, the example of England as
it stapos at this presept moment. Will anv
one say, that what passed at Kilmarnock win
bear any comparison,' fn point of indec^iig[
and indecorum, to what is notoriously passing
in England ^very hour, and under the imme-
diate observation of the judges and of parlia^
meot. The orations of Bunt — the publication!
of pobbett and oth^s— the meetings ip Spa^
(elds and Palace-yard, are all, up to tnis
hour, unchecked and unpunished — aod are
met only by ridicule and precaution. Ip the
Eovf 1 Kxcoange, at the doors of the l>ouses 0^

{)arliament, at the gates of the psdace, pub-
ications are opeply sold — ^oot 400 copies of
dull speeches, out hundreds of thousands of
^aily and weekly effusions, containing, every
one of the(p, mutter far wors^ than what is
found in'tljis publication. I am sure no 006
can look into them, without being satisfied
that they contain strong excitements to dis-
content, and (l^at their authors are fKontioually
^f^orking upon the feelings of the country ; yef
they are still holding forUk their doc^inef
without danger of interfereirce.'

See, then, what is the course, that all the wis-
dom in council, and policy of government, i^
that land of freedom have held? What is the
course they htfve pursued with regard to thct
portion of the people with whom originated
apy disorder that exists in the country, and the
people to whom indeed the disorders are stiu
connned ? Notwithis^nding ' the situation of
England for the last six months, this is (hejir^
and the only trial which the present aisturbed
state of the countiy has produced. Really, t
should not have expected to find the first trial
in this country/ They that are whole need not
a physician, 'fhere has been breaking of frames
in many counties in England for eighteeti
months ; and y^t his majesty's governmisnt have
a merciful reluctance, and ^re slow to call the
people to account even for those great excess^
while there is any reason to t^ink that they
tave been' pix)duced chiefly by tpeir misery.
^p^ If ith regard tp fiip pplijtical commotions ip
th,9 j(netrop6li^, they kno^ that a check to ihe
'jpint of freedom oughj' pof lo be giv^p
wit^<?yl ;ie;ces^ityiTr-jtTift the presp^ tuipults

tavp jyqt fgrj^^j^'qpjijnucli from wickedpess <Jf
^eart, a^ frpjp the 'p^essuVe of ipise,ry ;— an4
j^itj^ > ga^xpal ijolic^tuge, t^ey J^opjt watchftilly

ii9l

57 GEORGE III.

■'Trial ofAUxander McLaren

C120

and corapassionalely upon tlie people as if they ; gemm of their countrymen is so apt to hurry

.■were in the delirium of a fever ; — and they spare
them as deluded and mistaken only for a season.
That is the tone and temper in which the equal
justice of England is dealt, and sure I am it is
admirable, when compared with that which
would lay every newspaper open to prosecution^
and stifle the voice of freedom. Nothing but
extreme necessity and immediate danger can
justify the rearing up state prosecutions.. Ac-
cording to the example of England, we should
be slow to punish the people. In England,
much more has taken place to justify prosecu-
tions than has yet occurred in Scotland. Looking
at home where no riots, and no rebellion exist,
andwhere a great mass of misery has been more
quietly^and more soberly borne than in the sis-
terkingdom, ^e should not be rash or hasty to
stretch out the hand of vengeance against those
^ whose case calls rather for compassion than pu-
nishment. Believe roe, gentlemen, it will be
no honour, and no glory to us, to set the exam-
ple of severity on such an occasion ; nor will
It redound in any way to the credit of our law
or our juries,'that we were more sharp-sighted
and jealous than our neighbours in weighing
ihe rash words of our fellow citizens, at a time
when they were suffering the extremity of dis-
tress.' At such a season, expressions t&i// be
.used which it is impossible to justify; and
offences will be' committed, which will again
disappear in seasons of prosperity. A vigilant
police, in such a case, is all that is wanted.
Absurd and impr6per expressions at meetings
for petitioning parliament hardly deserve no-
tice ; and a facility of obtaining convictions for
government on trials for such offences is uni-
rersally recognised as a mark of public servi-
lity and degradation. It is always most easy
for the worst governments to obtain such con-
victions,— and from the basest people. Affec-
tion to the constitution is planted substantially
in the hearts of the subjects of Great Britain ;
and it is only those governments which are
doubtiiil of their own popularity, that are given
to torture and catch at words, and to aggravate
slips of temper or of tongues into the crimes of
sedition and treason. If, on account of some
rash or careless expression at public meetings,
people are to be punished as guilty of sedition,
there is an end to all freedom in examining the
measures of government. The public expecta-
tion is alive to the result of tne first of these
trials; and I say it will be no honour, and no
glory to you, in such a case, to set the first ex-
'umple of finding a verdict which would subject

ihem,— especially when they find that far worse
excesses are pardoned in England to the phleg-
matic English, — in whom they have far less a-
pology. * '

I have exhausted you and myelf, — but I have
one word more to say. This is a case above
all other cases fit for the decision of a jury,
— a case in which you can expect but little as-
sistance from the Court, and in which, I will
venture to say, you ought to receive no iroprea*
sionfrom that quarter, but judge and determine
for yourselves. The great use of a jury is, not
to determine questions of evidence, and to
weigh opposite probabilities in a complicated
proof. Its high and its main use is, to enter
into the feelings of the party accused, and
instead of entertaining the stern notions of
fixed and inflexible duty which must adhere to
the minds of judges who administer inflexible
law, to be moved by the particular circumstances
of every particular case — to be touched with
a nearer sense of human infirmities, and to
temper and soften the law itself in its applica-
tion to individuals. It is on this account alone,
I believe, tliat in foreign lands the privilege
of jury-trial as existing in this country is regar-
ded as so valuable. And certainly its vuue
has always been held chiefly apparent in trials
for alleged political offences, — with regard to
which it is the presumption of the law itself^
that judges might be apt to identify themselves
with the crown, as they belong to the aristocra-
tical part of society, and to those great establish-
ments which appear to be peculiarly threatened
when sedition and public disturbance are ex-
cited. Whether there is any reason for this
distrust is not now the question; and in this
Court I am perfectly assured that we have no
reason whatever, to doubt the impartiality of
the Bench. But it is not to them that the coun-
try looks, — that all Britons, and all Foreigners
look, in questions with the crown, when as head
of the state, it demands punishment on any of
its subjects for allecced want of obedience. — In
all such cases, the friends of liberty and justice
look with pride and with confidence to the
right that a man has to be tried by hjs peers.

If this question, then, is left to you, and to
you only, I am sure you will not easily take it
for granted that the panels at the bar were
actuated by seditious motives; You will judge^
whether in the publication of this fooli^, in-
temperate and absurd book, there was an
intention to excite disorder and commotion in
the country, and that in this conduct my client

people to punishment in the circumstances of \ was blind to his own interest, and to the evil

these panels. Even if you think that the crime
is doubtful, I trust you will not be disposed
' lo lend yourselves to the over-zeal of his ma-
iesty's professional advisei*s in this part of the
kingdom. I say, I trustyou will not shew a
' disposition to follow, where the keen and jea-
lous eyes of persons in authority may spy out
matters of offence'; and that Scotsmen will not
be forward to construe into guilt those excesses
of speech into which they know that the/emif

consequences to his country. The essence of
the crime, I can never too often repeat, con-
sists in the intention; and in judging of this
you will take all the cii^umstances and eM the
acts of the parties into your view. In a sea-
son of great distress, one single meeting was
held for petitioning the Legislature, — a pur-
pose which redeems every thing that might
nave been amiss in their proceedings. No-
thing but a petition to Pariiament was, in fact.

121J

Stid fkomat Bairdfor Sedition.

A.D. mi.

tids

the result of the meetingj-^anil 400 copies
t>aly of these foolish speeches vere printed.
No steps were taken to promote disorder, but
the most entire tranquillity then and after-
'wards prevailed.

When I think of these things, I can have

BO doubt at all of the issue of this trial. Yon

cannot but perceive that the panels have not

been proved guilty of sedition ; for they have

oot been proved to have said or done any thing

wrickedly and felotuousfy, or for the purpote of

exciting tumult and disorder in the country.

Their general conduct and character render

such an imputation in the highest degree im«

-probable; and the particular facts Which have

been proved are so far from supporting it,

that, when taken all together, they are obviously

inconsistent with its truth.

SUVMING-UP.

Lord Justice C2erft.~Gentlemen of the Jury;
Although you have heard from the learned
Omnselwho has just now addressed you,
. with infinite ability, on the part of one of the
panels, that this is a case more fitted for the
-particular consideration and final decision of
a Jury than of the Court, and that here the
-Court has less concern, and less to do, than in
any other species of trial ; I am, much afraid
-that, in the view which I entertain of the duty
incumbent on me on this occasion, I shall be
under the indispensable necessity of still de-
-taining you for some portion of time, notwith-
standing the fatiguing duty you have had to
' perform.

In consequencerof the alteration of the' law
' relative to proceedings in this Court, it is no
longer neeessary to take down the evidence in
* writing,* but it is still the duly of the pre-
siding' Judge to sum up that evidence to the
Jury who are to decide upon it; and notwith-
' standing what the learned gentleman said,
'(and' I 'am not disposed to find fault with his
remark), I shall state for your consideration,
the nature of the charge and the evidence ex-
hibited against the prisoners at the bar. But
even if I were not enjoined by the pbsitivc
authority of statute to do so, I should not
* have hesitated, in such a case as the present,
to state to you my view of the evidence and
of 'the law applicable to it. It is your pro-
vincej, indeed, to judge of the whole of the
case; but sitting here as a guardian of the
rights and privileges of the people, and bound
as I am to administer the law according to
the best of my judgment, I have to state to
you, clearly and distinctly, my view of the.
law of this case, and then to leave it to you to
do your duty, as I shall now endeavour to do
nrae.

The Indictment exhibited against the pri-
soners at' the bar, contains in the major pro-
position, a general chairge of sedition, and in
the minor you have the narrative of the fietcty

• Vide Stat. 23 Geo. III. c. 45, made per-
petual by Stat. 27 Geo. III. c. 18.

I in reference to whic% the public prosecutor
subsumes, that they are both, or one or other
of them, guilty of the crime of seditidn, actors
or actor, or art and part.

You will have observed, that the evidence
which has been laid before you is of a
different nature as it affects the different
prisoners. One of them is charged with
having delivered, at a meeting held in the
neighbourhood of the town of Kilmamock«
a speech, which the public prosecutor states to
have been of a seditious nature, containing
a number of inflammatory remarks and asseiv-
tions, calculated to degrade and bring into
contempt the Government and Legislature,
and to withdraw therefrom the confidence and
affections of the people, and fill the realm
with trouble and dissention; the manuscript
of which speech he is charged with having
afterwards delivered to a printer, for the pur-
pose of its being printed. And with regard
to the other prisoner, it is stated, that he pre-
pared for the press an account of the proceed*
mgs at the meeting, which account containt
the speech above referred to, and others also
alleged to be of a seditious and inflammatory
nature, and that he assisted afterwards in its
circulation, by exposing and actually selling it
in his own shop.

It will be necessary for you first to consider
what is the evidence of the facts as it applies
to both and each of these prisoners. After*
calling your attention to the facts, I shall make
some observations on the law of the case;
and I shall then desire vou, upob these facts
and that law, to consider whether there is
ground for the conclusion of the public pro-
secutor.

It ma^ save you trouble, to state to you at
the beginning the definition of the crime of
sedition, as given to us by an authority, which
is one of the most respectable with regard to
the law, 'that can exist in any country what*
ever. I do not know that there is any founda-
tion, in point of fact, for the supposition which
was mentioned, that the author I allude to
had ever been suspected of having any par-
ticular bias in giving a view of this depart-
ment of the law. I never before heard that
such a notion existed in the minds of the peo-
ple. Bnt sure 1 am, if they who read his
book look to the authorities and decisions to
whicli he refers, they will be most decidedly
of opinion, that he has expounded the law ia
the most clear, able, and satisfactory manner.
Mr. Hume, the author to whom I allude, gives
this general description of the crime of sedi-
tion*:' ** I had formerly^ in drawing the line
between sedition and leasing-making, a proper
occasion to explain the general notion of uiis
offence, and I shall not now attempt any fnr^
ther to describe it (being of so various and
comprehensive a nature), than by saying that
it reaches all those practices, whether by deed,
word, or writing, or of whatsoever kind, which

•9^

• Vol. ii. p. 484.

193] ^ GiORQE HI.

TrSfitqf4hevi4er M'^tarm

ClH

ve suited vdA ioteo^eA: to dwtiiri) die tra^r , eottposHiaD is, ipeseralljrff that it is of an iof

•iiiltity of (h« sjtaCs, for tlie paFpo9« of pro*
jttoing: piilHie Uooble or oommotipq, aad
moTiDg his Majesty's sitbje«|0 to tfa^ 4i<liK9b
i«Mitan«Q» Of subvanioft of tibte ealabUshed
goaaniiaent and Uws^ of sattlod temo and
flfdorof tW0gi,

>^U»dot ^s deseripdoift woald fall a woilf:
^mcb a« it haft boon i^esarvod finr tba ifiicked*
nass. of tha fireseot age to produae)* whicb
finQM. teatoli tJbai all aftonaro^y and hereditary
iiiilk» or all dancal dig)ailie« and astablisl^
flMBts of r^fioB) are an abuse aad mwrp-
ationi eootrary to reason and jnstieei and
VAftt to b^ aoyloQgef saifered or contintied.
Or» tbougb ilie pieoa abouW not set out upoa
ia bfoad a principle at tbis» if it argue (ia
ttOOMMMi vilb the manv oomposilions which
baiFo lately been pressed upon the world) that
1km po^er of the king is oTeiYrown, and
tn^il^ (d miff k$$ard, to be retrenched ; or that
iba CMUIK>ns are a more nominal and pre-
landed rapresentative of the people, whose
laws are entitled to no manner of regard; or
that the whole state is MX of corruption, and
tbai the people ought to take tba office of re-
imaiaf it upon ihentselyes. All axhortations
of this l|ind, whetbar any eommotiop follow on
them or not (for if any do fpUow, then it wiU
d^and on tbedegveOf fashion, and immediate
ooeaston of that dtsoirbanca. whether it is not
treason in those who partake of it), are un-
dottbtad acts of aeditioay beiag oaloulated and
employed for iba direct purpose of loosening
$b» hold whicb thaOovemman^ has of the opi?-
siions and alfesiioaa of thfi people, and Ibua
pveparing tbam for aeto of rasistftooo or

aggression.*'

. SoTeflal of the jostaooes wbi«h ba i^vep of
Ibii «nme vvwe alraady read to you, and I
*aed not repeat tbi&m. Bat J refer to anotbar
■assage further oa, in whish tha fmthor ooi^
knH and ilkiatftiat bis opinion. ^'Tbf lai^
aon ia aU these eases is the aaiae* The oriana
#f aadiiian, tbensfore, Has ia tba stirrifig of
anob hnvoiirs mt naturally tend to ohange apd
eaasmelios in iha stale. $o pear, indaed, is
Hia alUanoe betwaan sediiioa aad treason^ that
i£f instead of sowing the seed^ of a hostile dis-
position lia the GoTemiaent, or preparing e^
materials m in tkne may kindle into a A^me,
She offender abatt seek the aame object jpaore
faBSBgdwaely, by a direct end dtifioite exb^-
atian to aha fe»ple to rise at ibat particular
jeaaoo ^asid f oniyaActvre, as ad^ant^ao^s for
^Mwogtbairiends; this measure in like ipan-
«K, aa a oaosidtafeioa to hvf war> -seems tp
liatiaitiivf kH than mo aot for ^o«ipaBsiiig M^e
4eash of tiie ktiw, beiagadofidad and laa-
MM sftep ilolvaiidM the doing of <that fvbiph
^siinotrbe id^ne witbqnt tba plai9 d^oftor of
iba Soaaaetgn'a Mie^"**

Agftta^sn ftpeabing of a dialiaotitw Vrhioh
Jhaabtvdayibatti'gfauiead.-a^botaiieaa aeiM a«ji
Mid^edi&^a;' Mr. fiama eiipiiBSMS bimself Jin
tfwsewoidsl: ^i[ idl-lhat can be «ttddf -the

♦ Vol. ii, p. 4d4. t Ibid.^p. 4W.

jSammatory kind ; such as by the principles it
inculcates, and the obloquy it throws out oa
tbe mamagepi^ pf public ^airs, ^nds t|0 thf
infusion of jealousy and discontent among tb^
inultitude; but without - prgiceedi^g to any
petrosal of a plan, or set of active^ ope^on^
as grounded upon these p^ciples, and fit 19
be follow^ in the exis^ng state of thiosa;
this may with propriety be referi;ad to too
head o( verbal sedition. It was for a co^npOr
sitioa qf this, character that Robertson and
3erry* were convicted, as has been meatione^l
and William Stewartf was outlawed upon a
charge of the like nature, on the 11th March,
1793.*' So that you see it most distinctly
Stated, tbat words, if of an inflamqiatoqr nv
ture, though not followed by active operauoo^
will amount to verbal sedition.
1^ I shall content myself with reading to yon one
other passage, without offering a word of my
own upon the subject. Thijf passage refers to
the distinction between the crime of ^editiop
and that of leasing-making, which is still recog-
nised in our law, '' Bi^t sedition is a crime of
afar wider and more various de^cripiivn, aa
wqll as of adeepercbaraoter, which may aq^a^
ly ba oommitted in relation to any of ta^ oth^
powers, orders, or parts pf the public consti-
tution of the land, or to any class or division
of the society of its inhabitants, and withooA
the use of special calumnies or slanders against
the king, or any other individual ; as by the
forming of combinations, the taking of reso-
lutions, the circulation of doctrines and opiu*
tops, or, in general, the pursuit of any coarse
qfmetffwra and^vf^ioa^ such as dirfietbr tap4*
to r^stan^e of the legis^atvira or estfiblisbafl
govemmant, or to the aew-modeUiag fif tba
st^te. without the ai|tbority of lav* |fo inaee-
tiv^, therefore, bow violent soever, og^dnal
avooaicby ipraieral,— np abuse, the n^oft oat-
rageoos, of the Bri^b oonstitution^-r-iio pr^
ceediogs, though ever w^ plainly tenoiag to
abolish tNt vanerable sy8teD^ ^d set up a
pair form of government in its room, wonld
jOftify a charge of leasingrmaking, Becsuisf i
iboi^ all iovolving the state and office 0^ tbe
]pfi% «s part of the constitution, such pr^
jai[^ are ^veiled against the yho)e svstea,
^d are pot amoved out of special groove ^
tbe pria^ upon the throne, but spring frojpa a
d^p^ ^d more roalignai?it prii^ciple, as wa}l
jss empk^ pnore direct and afore extensive
speans ihifk that of mere scolder of tbe per^o^
and condyM^t of tjve king. Thu^ ^edition if ^
prppsr orine against the atate, and balds the
^a^pj^p aftar tr^asott, to which )^ fS p^y
9Ali^, s^ ivbich it an ofWn but ]^ ji
interval, precede. The other is a persca^l
J^fe^mt ^^ 'l^bfd injury o&ned \t> *tt]ie fiing
^4 ?9rhieh ^f laff i<msi<l«» W »? W^^
IPQ^serioitts Mrtt -tMm pijber ^jiyiesof V^
riiis, partly by .xpayon ^i ^be j"*^ r^ggg^ it t^

♦^JHow,bIod.St..Tf...79^ ' *
t.?.Il9W.J«p4.fit.'Sr,?i5-

1051

and Thomat Snirifor Sedition*

A.D. 1817.

MSB

to iliB't^ifife *^ triliqwllfy of Ui9 imA of
the state, ilie nodt vti^a^atp^mm in the Imvd ;
luid perthr hy reason of the poMible evil m-
floence of sach an example on the affections
ted di^[MMitions of his sahjeets."

HRfing tbnsexplainedy frdm what I oertainfy
ttketo be nndoaMed aQthority, what oonsti-
totes sedition, I have to stete to you what is
eqaa^' dear in point of law, and what it is of
essen&l importanee you sboaUl keep hi f iew,
and upon which iMth sides of the bar aie
agieed, — that it must be held as the landa-
mental fnle of your conduct in 4eeiditt|^ this
ease, thst^by the hew of ScoUatHl your duty is
not limited to a tonsidetation of the iaots
Inefelr, but Unt it is- your protince to take
info view the naOrre ef die sj^eecbes and wn-
tittgeomplBined of, as well as the hAi of poh-
lis&^^aUd I state to you in the words used
hy*a dj!ifhi|liished Jvkdge m-a former ease of
a&ilioB, though not etfadtly parallel to the
fMesenl, that it is not only yimr right and pri-
vilege, lUit Jfour unquestionable duty, to say
^Mietfier seditioa has biete committed or not.*

Hiving paved the iray 'to ttie cottsideration -of
tile qo^s&n before us, Weare first to consider
fvhat is the evidence irhieh fte prbseontor^itt
i^aced astoM'Lartmhaviagdehvcffedmspcaah
Itetainhi^ passai^ suchas these set forth in- the
MdEtaoent. You-vrill teooHBOt^tiiatyoa had
BMBght before yeu Mr. Andftw Finnte, k
iMhiess on the part of the 'Cr##n, blit who,
In reAMncetb «e whole of the transactions
indter ^saasW^iatidn, w«as MiBBetf, ^toweeitain
exteMy a pikty concerned. He was a menp>
1»er of the coiMnittee ttiat -prepared mttjltan for
the ttiBefingy^as himself pnteent-at' the • mfsofr-
fagy-atfd was-hfterwardsfselected^ij take a« lead
in the si£boeq«eDt pMeeedings. '¥ett'«ie se
judge eflfis ^^tidenGe,*^hkh he ^Kj^pcafod lo
give hi m-fiUr, open, ted 'Mndidmanaier. I
kee no «hfll6tion to^fhe wai|;ht of his etiteMe.
Iieaays,flifttheiswot«hle to iptek diMMRitly
is tolhe^w%ole of lil^fiiveii^epeeoh, bnt 4bait
to4he litter pen of it he did pay piiaieilir
Mtea^ioii. 'lie ii«m« (balhtf 'heardhhttdiAHer
lhese-^M>iiAs: «We>WiU ftr^^'^^^'let ns lay,
eurpetici0br^lfthe1hM:^f-lh#«hrMa, who»e
«ts tfor angttsrptinee, whoM<9enetous mme
irin ifi^lhse his ear to the eriesof-Ms people,
which he-is botmd to do by the eoliftimtioflal
iiws ef Iris eountiy ; and we are thereby boofid
to give him our allegiance : but if he shoidd be
so infotdated as to torn a deaf ear to the gene-
ral cries," or," voice of his people, to hell- with
eur attef^anGe." This is the whole of the
passage as -for as the 'witness reeolleots. It
was ^ the close of" the speech these words
ivere used. He stafe^, that the'Svoids^ ** And
we aie ihenhy boond to give him-eur aMegi-
aifeee ; bat if he should beeo infos«aied'«s to
turn a'deaf ear to the geneMd eries ^' ot ^voioe
V9 h^^jMOple^'^and not '^jSiifeMeo," »being
tt|i #oitis soi«««pieDyy melted in theiidieiment.

•*HM>>*«*^i>ip>

'^ See Lord Ahetvwmby's sanmimg^p in
«he ease of Fyshe Pahie^«a^e VoU 9. p. 31^7.

preeeded these words'' to ImU «dtb mr afl^
anoe." He is positive ^and was equally so
upon hb cross oaanrination) with legasd to
what be heard McLaren say. tie states^ that
the words," to hell wadi onr allegiance^'*
struck him as strong, and that thouffh be did
ix)t take any noees of them, he consMMred tlMan
so strong that he can swear to diem. Xon
will therefore coasider as far as this witneas
'goes, whether you have not a deposition. tQ>the
very words. It vriil be for vou to jndge
"whether the exact words cbaigta-An Iheindiai-
ioaent have been proved er not, or whether, te
essential parts of the passage ham boan
proved. When a very elase affiniSy is. ■»•
sCnictedy it is for lyou la coBsiisr-whatis.eiia
foir import.

Another vritnessvras eaUedon the pact ieff
the proseeulion, iwho, tbongb he.givBs ibat an
imperfodt aecovnt of the apaech in ganaral,
does swear to what is desersiag of attanliesi.
He remembers.partof the spea^ towaads .the
end, " to hell vnth," or " for. ailegsance." .Ha
said, the words, "if lie tamed < aideaf Mr-^ia
the voice of his people,'' wwefallewiBd bylhe
«spieesions I have just cited about aUegianee,
This as the evideace. of Meina, and you mall
consider wiMther it dees not coBrobonato. Urn
special aecmint srhich lir. Fassiieigises ctf
the. speech he bemd :M<La(en delivet. tfiiet
attempt waj made io examine .f Innie as e^
the eitnatioo where he stood, at the.
or whether -^se avas any jiosse or
ef hearing.

The question ^as-to theepaeeh avtuaUljKidi^
livesad doesnot seat here,.beaaB0e -yen will
•find it was admitted by M'Laaen haBisBlf,sta
his-deahiration bsfose the sheriff, that he dsA
give in a naaaseaipt contaamnghis speaeh Jia
the .oammittee to he.pcioled, aiid.rthBi the
prmtedaeconnt^^ iaiieas>ahontwhatahejda4d»>
naaaaadmi dmtabore oneaaiia,>;e insfH wil ia
said abaitt'the middieof ihe seaaMi:wage.ns.
to ai|egianoe,:whiah the derUwn»i:thmhs;he
dadsatdehseritDithe naoadsias. smamsaJ in
ihepahiication.*' Yea have, beeidas thiai^Mtlm
aeiiwsce . of '4aihar . fwitnasses. In paslieulaK,.
temsonswean,' that the apneahms raad^oecr
in *iiM4Bett's preenoa, and that Mr« Baacd^
•the other prisoner, made an aHeraftion onit:ui
penial; Ohat he inserted words,. makingrthe
speech. oonfotronble to the piinSed aceonnt lof
it hare before- us. So that this ehroamatanee
of the MS. having been prodnced, read over
-and levised, in .the presence of these men, and
en' alteration being made by Baird, withofSfc
any objection, as Samson swears, having been
made by M'Laren,. ahews that> M'Laren ap-
-proeed.ofohe akamtk>D,«rat least 4hat he did
'ttotoppose it; andthis, withiheothetwviiam:%
rgoeswto 'Shew 'what'-was^the tmejsMiitnie .of
ithe spaeeb/deisvemdjuponrthat eeaasiqn.

You have i to cempare . the - paimad f^mpoiA
•vittth^ tbaeeei jiHSOBlsimdiaard by EinniatwUch
eameiavit of^ihffLaren'ai- month. tU jmvu thiak
it your duty ta^ake the prinied etateBMiit as
the true account of what was said," But should

1*7]

£7 GEORGE IIL

Trial <}f AletaHder M'haten,

[138

he be 80 infatuated as to turn a dekf ear to
their just petition, he has forfeited that allegi-
ance; yes, my fellow townsmen, in such a
case, to— —with • their allegiance;" you y^ill
keep in viewj that McLaren gave in the
manuscript of his speech to be printed, and
vras present when Baird inserted these words ;
and you will decide for yourselves^ whether
there -is any doubt that he permitted that,
which he took no steps to prevent. But again
if you take into view the words as given by a
-respectable witness, and confirmed, to a cer-
tain extent, by another witness, and admitted
by the prisoner himself to Mr. Johnstone, yon
will consider whether there is any rational
ground, for. doubt. as to the import of the
passage of the speech which M'l^ren delivered
■aitng beieea sufficiently established.

Next, with regard to Mr. Baird, the case is
of a different description as to the .facts, for
lie is not alleged to nave made any speech 9X
all. The charge against him is, that he . was
one of those who printed and published a
statement of those proceedings, containing not
<iBly McLaren's, speech, but those of others
^fiiich are founded on as being of a seditious
and inflammatory nature.. It does appear in
«v^deDoe that Mr. Baird was at meetings of the
eonimittee, bodi before and after the public
meeting ; and when the decision was taken as
4» printing and publishing the proceedings he
was present. It has no doubt been proved,
<Mi ills part, that he was one of those whb did
oppose in the committee the printing of the
|iatsage in McLaren's speech, but that his
olgection was overruled ; and had Mr. Baird's
case rested here, and had the public prosecu-
tor endeavoured to implicate him in the pub-
lication, by his merely being present at the
public meeting, it would have been difficult
indeed to have persuaded any jury to have
found a verdict affainst him. But his conduct
was different ; for, after his objection had
been overruled, he superintended the publi-
cation ; .and it is folly proved* that he went
twice or three times to the printingK>ffice with
Mr. Andrew, who was employed in revising
the p'roof sheets, and that, upon one , of these
occasions he suggested the correction of i a
grammatical error. This evidence will pro-
bably be sufficient to satisfy you that Mr. Baird
did take a concern in the printing and pub-
lishing of what is complained of, even after he
stated objections to one passage. His con-
duct, therefore, at tliis penod, makes. him re-
sponsible, even if the evidence . stopt there ;
Imt has it not also appeared in evidence, that
Crawford holds him responsible for the payment
of the printer's account? and were not many co-
pies of the pamphlet sold at his shop ? Mr. Finnie
swore that Mr. Baird got some copies from.him,
and expressed surprise that the witness had
not got quit of all his copies. Mr. Baird is not
a bookseller, but a grocer, and disposed of. the
copies in hiflr shop ; one of which copies, it
has bean proVed was^ thef ^ bought by Htigh
Wilson. . . -w

. Having stated to you what appears to me to
be the. result of the eYidence in these particulars
as to the* facts of delivering and publishing the
speeches complained of in> this indictmentj
there still remains a much more important
question for your decision, which it is your
entire province to decide on, but with respect
to which, it b my duty to submit a few obser-*
vations to you. You have already had an op-
portunity of hearing, that on the face of this in-
dictment, as the matters are there disclosed
•and undertaken to be proved, the court con-
sidered the charge relevant, and fit to be sub-
mitted to a jury ; and now that, the evideoca
has been led, .and we have the whole circum-
stances investigated, I have no difficulty in
stating, that notwithstanding all that I have
listened. to in the very learned, able, and in-
genious criticisms, both on M'l^ren's speech
and on the passages, of the publication which
have been rounded on, I am still of opinion
that there is matter of a seditious description.
It wouljl be. most improper, however, on my
part to. hold out to you that I think this a case
of sedition of a most atrocious or aggravated
description. That would be an erroneous im-^
pression. I have to observe, also, that I am
far from thinking it proper, in the case you are
now trying, to refer to other cases which are
notpanUlelto it in the focts. . But in reference
to the prisoners at the bar, it does appear to
me, ana to the rest of the judges, to be clear,
that there is on .the face of the speech of
McLaren, and in the different passages which
have.been referred to, as well as in the context
of the publication, matter of a seditious nature.
How far that seditious matter has existence ia
point of fact, or is affected by the circumstances
in evidence, or the remarks made on it, you,
however are to decide. In judging of this,
you are called upon to look to the intentioQ
imputed to the parties ; and I concur with the
learned gentleman in thinking, that it is the
part of the public prosecutor to establish the
criminal tendency of this alleged seditious
publication. Criminal intention, or Uiat the
facts were committed wickedly and feloniously
as charged, constitutes the very essence of the
crime. You must be satisfied, that the pro-
ceeding was not only seditious in itself, but
that there was the criminal purpose in the
speeches and publication which is charged ia
the indictment. I do apprehend, that when a
jury, is called upon to decide upon tlie import
of a speech or of a publication, ,it is their
bounden duty to put upon that speech and
publication a fair and even a mild interpre-
tation. They are not called upon to stretch
matters, or to endeavour to find out a far-
fetched meaning in words. If words are of
4m. ambiguous nature, the mildest construction
of them, is to be adopted; but, on the other
^hand, reason, requires that a sound, plain, hpr
'nest meaning be. given to language. . It Is niot
disputed by the public prosecutor (for he him-
.self, in some me^ui^ followed such a course),
that it » Qe.osQ^ary to Ipok to the^ context,^ ami

H0I

mud fhMm Bmrdjbr SMOtn^

A. a. isir.

[1S»

BolV> laitt Mtf » ieBCenoa of t spenb 4it y«b-
liealion, bvi to give fiur play to the aconsed,
bf rofimijBg to what pioccdaf and 4o wfaal
IdHois. It ii yov Inmness 4o take Ihe.docii*
aeots into jour own handsy'and looking to the
wkfi^ coDtcst to draar the eftochifion iHiether
tlpeve is aeditioa er not.

It if laMy poiwiWe al ftis late bow to go
tiiroofb every erne of Aa passages whidi are
tended oA» Mid fiu less through the wbole
nohlieation ; Wt I beg leare to say, in re-
ivence fo the speech of M'lAien, that there do
sppear to ne a asost improper atyle end tone
inte^boleof ii. He refeit to tiansacUoas
si » wmj distaol period, of whioh no sober-
SSinrded n^n ironld wish to revire or obtwde
ft^ recoUestiae, as affording any nde of eon-
duet fisr the people of this country^ in reference
|o their piesootsiiyition. From th^ beginning
^f the speechy in vpbich complaints axe made
of the oppressions under which the country iM
iabo^iingy to the conclusion, in which reference
is nade to the Pdnce B«geat, there is a ce-
mr^ style of inflammatory dedamation. Nor
was this effusion unpremeditated, for notes of
fhe speech were inepared by .him at an earlier
or later penod oewire the meeting. Without
going into particulars, Im there is a lone and
tagwsge in this speech which are strongly in*
IbMnm^tCiy, and tending to eidte in the people
disconrgtf and disaffection agiinst 4ie gwexn*
pnau md legjMatnie. tX this it is, however,
Youjr iMtovittce to judge. I have no difficulty
91 saying that liie lai^guage appears .to me not
to be of a desenption whsch can be ssfionciled
10 the single oloect of petitioning.

The passage uppa woich the most ipipoetant
oomnsents. hiore teen made is thai with regard
to tho petition to Ihe Pkince Begent, end the
Mseqjaenos of his not Ustoning.to the just pe-^
titioiBs ol the people. The passage is in these
epofde : ^Lat us lay .our petitions at the foot
of the throne* where sits oor angust prince,
jvhoio gfaoions natooe snli incline his eir to
liaten tp die cries of bis j>eople, vfiuoh he is
iMomad to .do by the laws of the oountry : But,
ebooldhe besoinfatuatedastotom a deaf ear to
fbAr just petitiqp» he has fosf^ited their alio*
^ance. Yes, «j ieUow-townsmen, in ^uch a
case, to hell wijth.oor -aUegiance." Take the
cxpnessions as given either in the pahlication,
er as in ari^eace by 4he witnesses, and say
is yonr oplnicn as fo this part of the

A great deal of most able and ingenious
criticism lias been bestowed upon this passage,
fmd mA it :the oeoastol for the panel giappied
to abettttmoat, pcsceiving at of v^al iippoitaaoe
ee4»eia*eiestofhis€li«Dt. ' He jvas bordering
«pon wmf diiieafir gronnd, indeed, in ihe de-
mice fdach hsimainlaiiied. But, after all yen
fcsraie boad^on thesnlQeot, yon eie to oonsider,
^ihethtf, nQtorithstanding she forouiable »-
marira maile in jnlssia re ito ahe Priaee Eqpsnt,
wawifk 1. adapt doapyaar in Aei^wt partjofthe
wsafa ipqneetiwi,.the langua^m the fol-
bw^Mioe instifiablai^ u Mmpfxefoaence

to the fAtitioas of dhtf people at laige, or to the
petition of these particnlar pecsoas. Tbe-term^-
jnst petition, no doubt, is employed. Baft
who M to judge of the justice ot the petition 1
It would appear from all that passed that tho
petitioners tnemselves were the judges. Whalf
was said to be the alternative u this petition*
:#as refused ?—<" To hell with aUegiance," or '
** our allegiance.^ I aak of you, as sensible and
reasoaable men, whether this language does-
liot indicate that the Speaker had tomtd a
purpose of throwing off bis allegiance, in the
event contemplated of a rejection of the per
titions in question f He was to arnur himself
against fais sovereiga, not in the ludioroiie'
manner that Mr. JdFrey suggested, but in a
venr different and much more' serious manner;
and I boldly affirm, that if a single step had
been taken, by following up the language ibim-
employed by any overt act, it would not liaife
been sedition, but plain and palpsifaie treaao&
Whether the languafps thai was here usei^
which. It has been said, only ^presses a Tesy
delicate principle in the ceostitutional law cif
this country, was calculated to excite discon^
tent, disunion, and public disturbance, is Ihe
question for jFonr deeision. You vrill judge
whether the words were uttered ; ]rou will jpva
them fair pli^ in judging of their meaainff*;
and in the interpretation df them you will senr
io the other parts of the speech. Inthatvfay,
yoa will satefy your minds as to the grouads of
the canclosion you a&ay come to, and decide se
to the intention of the speaker, and ihe import
of the passage.

Yon will judae^ else, of the meaning of the
term ** Gti^mchyf" which oocuri in the^peecb,
and in different parts of this publication : yoa
will consider' whether it alluaes to any of the
brandies of the legislature, or must be limited
to the persons forming the actual administr»*
tioo. I coincide with the opinion which was
lifted at bymybrodier on my right-hand ^
partieularly vrhea I oonsider the way and
■lanner in vfhich 4he term is explained by
another speech founded on in the mdiotmenl.
^* We have these twenty-Ave yeats been oo»-
demned to incessant and unparalleled slavery
by a usurped Oligarbhy, who pretend to be oar
guardians and repvesenutives, while, in foot,
they are nothing nut our inflesible end detei^
mined enemies.'* I think it is impossible, by
any interpretation, to suppose that this has re-
ierenee to ministen. It obviously has ^eio-
rence to the House of Commons, one of the
branches of the legislature. When they com-
platn of the oppression under which the ooaa
tiy labours, Ib^ have reference to the Com^
moas House of' Parliament. I think the same
iatespretation is applicable to M'Laren^s
apeecb. You are to consider, then, whether
the House of Commons, as now constituted, is
meant to be designated by the ^ usuiped Oli-
aardiy, who pretend to be oar guardians and
Wpiesentatiyes, while in fact, they are nothing

-5--*

• Le^aestoar«id»p. W.

ISlJ ^7 GGORGlB in.

Trial qfAi$mm(ler M^LofW

CHS

but our ioflezibte and .determined enemies^"
nlid who have these twenty-five years con-
demned the country to incessant and unpa-
ralleled slavery; and you are to determine,
whether 9 by propagating such opinions in a
speech to an assemblage of 4000 persons, and
afterwards introducing them in a pamphlet
which was sold and circulated in the country,
the paneb were not guilty of sedition. 1
tubmit to you, that if there is any meaning in
words, this was degrading the House of Com*
motts^— casting on them the imputation of
having enslaved- the country for the twenty-
five preceding years, and attributing to them
all the misery which the coufttiy is represented
as suffering.

: There is another passage in the publication
to which I think it necessary to call your at-
tention. I mean that general statement which
.'which was made as to the proceedings which
iook place in the year 1793. You wiU find the
passage in page 2, of the indictment. *' But
let lis come nearer home. Look at the year
1703, when the debt amounted to two hundred
«nd eleven ipillions, and the annual taxation
io about eighteen millions ; when liberty began
4o rear her drooping head in the country;
when associations were framed from one end
.of the kingdom to another, composed of men
eminent for their talents and virtue, to assert
ibeir rights; when a neighbouring nation had

i'ust thrown off a yoke wluch had become into-
erable,.— what did the wise rulers of this
jcountry do? Why, tiiey declared war, not
only against the French nation, but also against
«he fiiends of liberty at home." It has been
;urgued, that the term, ** wise rulers," means
the ministers for the time, and that their con-
•duct may be discussed without blame. I con-
jcnr in the observation, that there is no sedition
in the oensure of administration merely as
iservants of the crown* But the passage clearly
applies, not only to the government of the day,
Imt to the mtem of govemment,^ — to the legis-
lature'itself How can that be doubted, when
.you observe the concluding words: "Why,
4hey declared war not only against the
French nation, but also against the friends

' of liberty at home.'* Look; also, at the context.
.The clear import of it is, that when the coun-
try was in the awful situation described by the
learned counsel, the government declared war
4kgainst the liberties of the country. What
4ook place at that time is matter of notoriety.
,New measures were then necessarily resorted
.10 for the salvation of this country against the
attacks of foreign and domestic foes. King,
.Lords and Commons, united for the purpose of
'Securing the liberties of the country, and their
measures are here manifestly represented under
these words: /* They de<;^red war not only
.against the French nation, but also against the
•friends of liberty at hpme.? You will say, in

^ point of fact, whether t]^e fainistry or Ui)9. whole
legislature .were referred to in this passage, and
whether to cirealate it was not to psopagate

^ sedition tbrau^ottt the Miatiyt .

- Th0re are other passages, faflio the ooiiBtda».
tion of which I cannot now enter. I shall
just refer to one which has been commented
on at great length. The passage is, *' And a
House of Commons; but the latter is cofw
rupted ; it is decayed and worn out ; it is not
really what it is called, — ^it is not a House of
Commons," &c. It is said that there has been
language used in parliament, and passages in
petitions presented to parliament, stronger and
more offensive in their nature, than thi«
founded on by the public prosecutor ; and thai
such petitions were received and hod upon the
table of the House of Commons. Passages
were read to you to prove this. Upon Uiis
part of the subject I must observe, that what
IS, or is not, tolerated by the Houses of Par-
liament, must be foreign to our present discus-
sion. They are the best judges of what is
a violation of their privileges ; but this much i
state to you, that if seditious language be used
out of doors by persons in preparing a petition
for parliament, even if that petition should
embody the seditious words themselves, it
cannot be pleaded against a charge of sedition
that the petition has been received by parlia-
ment. We are bound to judge of the language
employed by the .test of law aiyd common
sense, and by that test to determine wbetjier
it is seditious or not. It has ' been held, again
and again, to be no justification, in a charge
of sedition, that language even of a more
seditious tendency had been used in or out of
parliament without being followed by any
punishment — ^It is stated for these paneliB, that
stronger language has been used in«. other

anarters ; but the answer is, that is nothing to
le question under consideration. If the
language here be seditious, iV is no matter
whether such abuses have been passed over on
other occasions. If such petitions as thoee
referred to had been particularly brought under
the view of the House of Commons, I shouki
think they must have been rejected; and it
would, be matter of astonishment to roe, indeed,
if petitions couched in language far short of
what is now before us were received. • But in
the multiplicity'of petitions presented to that
House, some may pass without due attention.
Perlmps very objectionable petitions do lie
there. But if the public prosecutor proves in
this Court the utterance and publicatien of
seditious language, it is of no consequence
that petition^ containing such language have
even been received unchallenged by the House
of Commons.

There is a part of the defence, however,
deserving of your serious attention. It was
abl^ argued by Mr. Clerk, that the language
which is here complained of, havipg been used
in connection with the exercise of the legal
right of petitioning the lerislature, cannot be
considered as seditious. Uod forbid that any
thing should be said by me hostile to the right
of petitioning the 'House of Commons, the
House o£ Lords,. or the' Sovereign, if the peo-
ple are ceqiectfulin their language; for to

133]

mi 1%»fhm BtMJof MMte.

A. O. 1817.

1134

lUte grier^Boes, aad apply fbr ledrtft, is the
uodoobled aad miafieiiable rigbt of the salgects
of this realm. Bat I have no difficulty in
sayniff, that i^ under the pretence of petition*
ing^, laogiiage of a seditious nature oe used,
those using or publishing it must answer fbr
the conseauences. The sacredness of the
right which is to be canied into effect, will
not sanction the use of unlawful means in the
accomplishment of it; and those who come
forwara upon such occasions must abstain
fWmi inflammatory, seditious, or treasonable
expressions. It would be a gross abuse of
tite inviolable right of petitioning, if it afforded
an opp6rtunity for every kind of language
being uttered, however improper or reprehen-
sible. Such never can be the result of what
ii due to the sacred right of petitioning; and
therefore the learned gentleman admitted that
he did not cany his argument so &r as to say,
that a petition mav sanction anv thing of an
improper nature ; but he argued, that if you
be satisfied that die object was, to petition the
legislature, you will be disposed to make due
alfowance for the language which may be used
lb caning attention to grievances. To this
extent the observation is well founded. His
good sense must have made him perceive that
both the law and constitution would sink
under any other doctrine. That is the test to
which you are to bring the matter now under
your consideration. You are to look to' the
whole fttcts and whold publication ; and you
win judge whether, when the people assembled
to prepare this petition, there was or was not
a biameable excess in the language employed
by them, and whether this was not greatly
ag|;ravated by the proceedings of the meeting
"being embodied in a publication, and circu-
lated over the country. I have no wish,
sentlemen, to press this case further tiian the
mcts appear to warrant. It is your bounden
dntr to weigh all those expressions which are
ftirly admitted to be too strong, and even
jndeeent; and it ik* jour province to say,
wiiether these expressions do amount to sedi-
tion, have a tenaency to bring into contempt
tfie government and legislature, and to stir
«p the people to disaffection and reheHion.

I (certainly do most sincerely lament that
«ar attention has been caUed to tliis case.
This is the first trial for sedition that has
occurred for a considerable length of time;
aid 1 can assure the learned ffenttemen that I
had fondly flattered myself, that even at my
rime of hfe I should not have . again had
occasion to apply my mind to the study of this
part of the law. I hoped and trusted, tiiat
after the dear exposition of the law in 1793,
1794, and 1795, in the different prosecutions
wha^ were then found necessary, sanctioned
smd approved of by the unanimous voice of
Jfae .country, I should not have been obliged
tb consider cases of this description. But
no it is, tibat although the situation of this
oonntiyis so highlT prosperous and enviable
t^ben cMiq«r«d with the rest of Euiope, it is

in Britaita in 18t7 that we live eidtod on to
consider such, cases. An allusion was made
to the state of the country at the former period,
as accounting for, and justifying the prosecu*
rions which then took place, as well as their
result. But the learned counsel was afterwards
under a necessity of alluding, also, to what has
recently happened throughout the empire at
large. * Extraordinary and strong measures
have been adopted, and the enactment of neir
laws has been rendered necessary by the state of
the times. But you are not to be affected by
such considerations, and I would not even
have alluded to them had they not been al-
luded to by the counsel. You must lay aU
considerations of this kind out of yonr view {
and, considering this indictment as brought
by his majesty's advocate in the discharge of
his duty, you are to determine on the facts^
and say whether the panels are guilty or not
of sedition.

I resret extremely, in a different point of
view, that this should be the first case brought
before this Court, and from a county with
which I am connected by so many ties. It
apoears to me that both of the prisoners
haa been men of exemplary conduct and
ffood character. According to the evidence,
Sf'Laren's private character had been veiy
respectable. Nothing but what was right had
ever been observed in his conduct. He had
never demonstrated any thing like a disposition
to tumult or disturbance, but was a volunteer,
and had served as such with reputation. The
testimony to his seneral character well de-
serves your consideration, in judging of the
criminal intentions of the parties, and deciding
whether their purposes were seditious. With
regard to Mr. Baird, again, you will concur
with me in deeply lamenting the exhibition of
this charge against him, atandiuf; as he has
done in so fair a situation in society. Many
of the witnesses, even for the crown, have
given him a high diaracter. The inhabitants
of Kilmarnock had some time ago appointed
him one of their police commissioners, thus
showing their good opinion of him. It ap-
pears, Uiat he was a man of respectable moial
character, and, in the opinion or the witnesses,
attached to the eovernment and to the con-
stitution, though he had a strong opinion of
the propriety and^necessity of a reform in pai^
liament. It has been strongly affirmed for
him, that he never had any thing further in
contemplation upon this or any other occasion.
With regard to both the prisoners, they were
not known to have been ever connected with
any other political societies.

These are points important for your con-
sideration in judging of the essential question
which you are to determine as to the guilt of
the pristaers. If, upon a careful consideratibn
of the whole facts in tlie publication, and the
evidence which has been adduced, you shall
b6 of opinion that no sedition or seditious
intention has been proved against the prisoners,
you wiU find by your verdict .that th^ are Jiot

ld<i 57 GEORGE III.

guilty of the ehmge. If, Ob die otter faindy
YOU are of opinion that these ib seditious matter
in the speech and publication, and that the
^arge or criminal intention imputed to them
in the indictment has not been done away by
the general conduct of the prisoners, you will
not, I am confident, shrink from your duty,
but will find them guilty of the crime of sedi-
jdon libelled in the indictment. And, if you
Ihink that the scales hang doubtful, and that it
U difficult to say whether the prisoners were
guilty or not, the former good character and
conduct of these men are entitled to fuTouiable
consideration. I leaye the case in your hands,
being co'Ufident that you hare paid most par-
ticulaar attention to all that has passed, and
can bare no object in tiew but to return a
eonsdentiOtts verdict. Whatever you may do,
I trust your Yerdict will be satisfactoir to your
4wn minds, and equally. so to die public.

Wrmt qfJk/Mmim M^^mm

J^itU 7th, 1817.

Lord Jtutice Clerk. — Gentlemen of the jury^
who is your chancellor ?

Jwy, — ^Mr. M'Kinlay.

[Mr* M'Kinlay ga?e the verdict into court.J

Lord JvUiee derft. — Alexander McLaren
and Thomas Baird, attend to the verdict of
the juiy on your case.

* At EdMurgh, the 6th of April, IBiTyeart.
The above assize ha?ing inclosed, made
choice of the said Archibald Mackinlay
to be their chancellor, and of the said
John Baxter to be their clerk ; and haring
considered the criminal Indictment, raised
at the instance of his majesty's advocate
for his majesty's interest against Alex-
, ander McLaren and Thomas Baird, panels,
the interlocutor of relevancy pronounced
thereon by the Court, the evidence ad-
duced in proof of the indictment, and the
e?idence adduced in exculpation, they,

Sa plurality of voices, find Alexander
lAren guilty of the crimes libelled in
the indictment; and Thomas Baird, ail
in one voice find him guilty of the crimes
libelled in the indictment. But, in con-
sideration of their former good character,
unanimously recommend them both to
* die clemency of the Court. In witness
whereof, their Said chancellor and clerk
have subscribed these presents, consist-
ing of this and the preceding two pages,
' in their names and by their appointment,
place and date aforesaid.

(Signed) A. Mackivlay, chancellor.
J. Baxteb, clerk.

Juitke Gfar^— OendeiAenof the jury,
you are now disdiarged from the very fiitiguing
and painful dunr irhich you have hud to per-
form ; and I feel it incuBbent'on me to state
to you, that the verdict which yon have f^
tioMd^ it^ in iu geacnd nealt, such ai I was

10 expect vcni a iuiy,oi yuUrivspcciaoBii^^
after the unwearied attention you have be*
stowed upon the whole of the trial. I am
confident that this verdict, while it is satia*
fiictory to your own minds, will be of gceai
service to vour country ; and I have only to
add, that the recommendation with which jwi
have accompanied the verdict, and whiel^
under all the circumstanoes of the case, is ao
proper, .will aieet from the X3ourt with all tha
attention it deserves.

Lord A&focate, — It jonly tooains for me how
to crave the judgment of the Courf .

Lord Jmtke Gferi:.— Have the counsel
the prisoners any thing to say on this verdict f

Mr. Jeffrey. — In stating to your lordships
in one or two wOrds^ what has occurred to us
on the verdict, I hope I am not doing more
ihan my duty. It appears to us, that though
its general meaning is impossible to be mis-
taken, there is an inaccuracy in one point,
which is worthy of consideration. Botn the
prisoners fue charged with iedUion and wUk ne
other erimef and the verdict has found them
both guihy of the erima libelled, usi^g the
plural and not the singular number. There
may be many facts charged in the minor pro*
position of the indictment, but there is only
one crime charged in the major proposition ii^
this case ; and you are aware that the verdict
is an answer to the major, and not to the
minor proposition. Logical accuracv is alwaya
requirM on these occasions, and this, there-:
fore, is not a verdict on which the Court
should proceed to inflict punishment. There
is only one crime charged in the major propo^
sition, and the minor contains different acta
libelled on in proof of the crime stated in the.
major proposition, and yet the verdict finda
the panels guilty of the crimen libelled on. I
am now arguing to a court of law, and not to
a court of equity. The verdict, in finding the

S-isoners guiltv of the crknet libelled, has found,
em guilty of something not charged against
them.

There is another circumstance which it is.
my dtttv to mention, that this verdict appearal
to be dated on Sunday. I believe this ob-
jection has occurred in other cases, but haa.
never hitherto been seriously argued.

Lord Jmtice Clerk.-^Mr. Jeflfrey is only
dotiig his duty in stating any objections that
occurred to him. But I apprehend there is
nothing in the objections which have been
ofiered. The mere slip of a letter cannot be.
considered as a substantial objection in this'
case. Uttpo crimee had been charged indie
major nropoeition, and the ve'Mict had oaW
found die prisoners euilly of die enme libelled,
it might have been difficult to say which bf the
crimes was meant. But here thcfre can be no
doubt of the meaning of the verdicL

Lord E^rmnd.^1 temefnfanr in i fHii fli
Ayr, of fNW I«\f»ri9» o* a «M^ « j(MMM

Mtl

■■rf Tl IiimW flii'iU Jill fclBTiiii

A. D. in7«

Ciat

^*^4ia*^**^'^

^tsdiei WW Toidy as bwiM moottun^ wk toaat
thtt dK jMfir mw ihooli beiitSicted. LmA
Clerk Miller adcuiited the latt^ altera
aari hnpcaed an tMttnf puaishm^nt.
A riMflarawtnaitanre oeqmeA ai acpiesticHi
Mte« the Govt of Admixalty^ abcmt a wreok
.aii tta oaast ov OiluKy.
- la Aia cave Ihe word cfiniatis ikot iiBfpit>pcif *
§Mim k the general diaraet^ of the cliche;
tat thete are two apecieB 4if tedition UboUod^
.one tiie makiaif a lywoh, aaotlMBr the ^Uiih^
jagabook.

liOfd filnaaadr— I ooBcar in Ae observetioai
^wki^ yoar toiMap addreoied to the J^. I
Ibiak this joiy dOMrvea tiie thtuks of tite
Court ; and, wku is mora, tke Aanks of Ike
ipoanCiy. I think they deseire the thanks of
anofher ciaas of men^ of whom I know little
^t hj report — of those who are coaaidering
j^ow rax they msnr go in opposition to the con-
adintlon with safety to their lives.

It was said by ooansel, that the present was

hn from bein^ an aggravated speaes of sedi^

^on. _ I like it the better for that. It is more

4gTeea!Ue to my feelin^ps — to the feelings of

every jnry, and of every iudge— to have mere

moderate crimes to try^ man to be obliged to

•jofiict transportation, or death.

' f am the more impressed with a sense of the

jnerits of this verdict, that when in ffroping

4apf way about 11 o'clock a^ night, in ue dark

•treeta of this city, and leflectmg with myself

wbat verdict I iftkonld have given, had I been

m jnrfBian in this case, sncb was die ^fklti of

a bfaoe <Mf ekMfnenee, ibat I eanaei say wlielhe#

I wooild bate said yes ortto, if I had been at

fbsft t&ne bbfiged to give iSi efpAnlOiii whethef

^er not the jpfisbn^n were gtiilt)r« Ltfee iM

j«i7 1 diooldfairfe wished to h*ve betts inolosed

§tst oonsideraiion. But, lyrrtet beMin^ It^

jtty doMbt dteafypeariBd, and I came to lh«

eipmoa, that the reletraney sC the bidi^Mient

as deaf aM the fbcfs completely pNfred.

%mff wortl--HSvef7 kttef of this indiotmetit

18 now been ftu^ proved, fftie JeYy hh^'
fiwnd It iMived, thiit afltei^ siifeal^ite of the
B^ctel with d«e iespeet'(Wli«aeir s«Holilly m
atft I do'ndi know), they |049n toeftt^ '« BM
MMbld he be so inlhtaated m to tiM a tfcMf
iiar to tfaeir j«M pedtiMu h« \M IMriMd'AMir
allegiance; yes, my fellow-countljMte^ iri
.flMlbacasey Ift As0 kptf4 oii^ ettjj^dMee.*'

It is net the lime new to iii^tolfe ki(» iM
jCfMcnee $ thou|^, wave that OMttj^feM, I
Awdd be lAcahr thit MA «#y eij^hMm U
ntoved aoafayt the pMets. AMI it hai tiM
tmfpMsi, iieoftett o^kusm^ thni Oiei 8fibii|^
#lititnuiiafceei ee*ie otftHi tte^^HMide ^IR^
JOtitOtrndtf iHtnMte. Wftkt I 'afittde io f#,
llte4epOiitiiAibf finrv^ Who tetl th«% Wis
a ¥Me fM in Ihe OMnMM wkhf ^ilHM ^
fifiMlf tte «b6^)i8Safl^ ; ttiif tome eifecM^
tofit HiirijIfAflMs ilni «ra!< tffitililer mi II

■m le »rtiiii>t iM ffti^ iMt4M m^

MrtefsboaUHilbegvbM. Istet iiatrirH^
Aence that theee were tlsB wmds atiered m the

ridi f B«t tt is nnnecessaiy to gs ihsongll
endentoi It sppeaia to me^ thnt it wai
not the ainistars or the dnr, bnt the oonMta^
tiott tet Was attacked. Bnt I «m1 not gO
buo thetb All that Remains for as is» to eon**
sider tiie amonat of the punisknent to be il»
tteted eA the prisonen.

The milder the pnnislwnent enn be made, if
it be inch ai mey deter ethers from cotnmildng
the like crimes in time ooSding^ thht is thi
pnnishnient that will aaeet ssy wish and that
of yonr lordshipi. This eate is different tosi
those tried in 1703 and 1794. I looked inte
them last night. They are ektieintlty diftrent
from the pf^ent case. Ibere the pnaishmeut
twatded trm tfansport«ion« NoHe of yo«t
lotdshipscnn hoof opinion wo oan here gn
that lengthy and> eonsideiriag Ae reooea*
teendation of the jurjr, I think w^ shall ssdistr
•at own oooseieae^ and the Jnstlte of tbe easoi
by inilitting sit months' jniprisonriient o* iM
paAelft. At the same tm^ tiiey sheuM b6
obliged to ted secarity to ke«p ^e peaoO fo#
the period of tlnree yeais^ Mr. Bsird, n^
appears to be k man of opulence^ under thd
penalty of tO(R., and the other nnder that Of
401^^ wMcih I Aink is not vAieasiiinaMe.

lord 6dlMs.^^fiothof the apfortanatejnanels
at the bar stand accused of sedition. Of that
crime, after a long trial, conducted with inft<
nite ability on bou sides, the unhappy persona
hav6 been found guilty by a jurjr. Under
tibese circumstances, nothina remains for us
but to give effect to the verdict by indicting
sooh punishment as it appeaii to us thek cam
deserves. Taking atl the circumstances into
consideration, aiM among otheft the reoom^
mendation of the jury, t concur in opinion aa
to the punishment which has been proposed-^
that thoF should be impritoned lior six monthsg^
and find secntity lor good behaviour^

lord JHM(ja^.^In^onsideiingthejad^:aieii«
Whi«h &x6M vb pMaMmcOd on this occa^on^
we iMiitnrally look to ihe judgmeM which h«^
be<^ pronOttfteed in shnilar tMepi ahd peM^
didarly to fhose wbhft have beeti referred ttf
by lord dermand. For, in every br^cb or
judicial ptoeedtfre^ aiiil in nolhin^ fnorO than'
m pronouncing judgment op a verdict infetiteg*'
aai arbitraty pnnithxnelltft, it is desinble to be
gnfided m ptecedents. If this ease bad i^
iftmbled &e cas« of I^sbe Palnker,* to viAiicIt
it has been assimilated by counsel, I thonld
hayetH^it asniy orphiion that thepuniHh*^
lai^t itionid be the state fts in thitt casO. And
if, utiliippil)r ib^ this €«>ntttty, Mch eates of
mi ttid agisted tedition fHaB oome before
tm CtthM^'-'Htei^ Utfle to be distittgnlsftedl
ft^lh U^etMi-*^ wfll be my tq^inion, sM* *
ilifl tiolieid«Hct)6n Of Ifte biw, kdd Of the WMlW
d^m fttttej^Hyoi, thuttransp^hrttic^ ii^fie
pftyMr'ptiuilnttfeitf; Bttt X^kgree w tiMroplnoa

• S How. Mod;tk. IV. Mn

1991

57 6E0R0EUIL

THAtfAUs^Mer »Uhb

[1«0

which hat beeh 'eipMsMd^ tbitthSt Uaouit
very different from the others alladed to, end
that it has a nearer resemblanoe to that of Ro-
bertson and Berry,* than to any others whidi
ocenrred at that time ^ and I therefore thio|L
that iaporiaonment is the appropriate popish*
meat- in. this case, and that wludi is pointed
out by precedent. As to the duration of the
confinement, I am always averse to long im-
prisonment'; and considering the recommend-
ation of the jury, I concur in the limited time
proposed in this case.

Having said thus much, I must express my
hopes, that this verdict will put down the
crime of sedition at the present juncture in
this countiy. It was urged in defence of the
prisoners, that the. culpable expressions were
employed when the per^ns were met, in a
season of distress, to petition the Kins and
both Houses of Parliament. But surely the
right of petitioning may be exercised without
making the speeches and resolutions, at such
meetings^ vehicles for sedition and treason.
What was said in a former case as to the
liberty of the press and of speech, may be
applied to the right' of petitioning. As every
nan may print or may speak what he pleases,
so mi^ he use what language he thinks fit in
his petition, or in the speeches and resolutions
accompanying the petition: But under this
condition, that if in his petition, or in the
speeches and resolutions accompanying it, he
is guilty of treason, sedition or scandal, he
must be answerable for th^ consequences, just
as he would be^ai&s^erabl^ for those crimes if
committed by him in eiercising the liber^ of
the press, or the liberty of speech. Why
should it be otherwise P I cannot believe that
this necessary restraint on the right of peti«
tioning will be any obstruction' to the right
itself. If the real object of the petition be to
6btain its prt^er, why should it be couched in
offensive termd ? Is that the way to attain its
object? It is the very reverse. It is the way
to get it refused. * Such a course can be fol-
lowed only for the purpose of getting a refusal,
and at the same time spreading alarm through
the country* To checx such conduct, as the
verdict of tlie jury tends to do, instead of
iniuring the right of petitioning, is the method
of securing it, and rendering it truly valuable
to the oountnr.

I have read the whole of the pamphlet from
which extracts are made in tne indictment,
and I am sorry to sa^ I have formed a much
worse opinion of the intentions of all the par-
ties than I had by readipg the indictment, or
by any thing that passed Qn the trial. It may
iMve done little injury, fox the range of its
circulation was limited ; but let any intelligent
man consider what would have been the con-
sequences, if t^is pamphlet had passed un-
noticed, and if similar publications had been
circulated in every village and populous town
in the country. No man who reads this pam-

* 3 How. Mod. St Tr. 79.

phlet dm hesitate to say, thal'hi'tiidl a case
the country would have been filled vrith the
most combustible materials, and that a slight
spaik would have lighted up rebellion from
one end of the inland to the other.

I shall only add, that if the prisoners and
their associates will not learn wisdom from tiie
verdict, and the opinion of the Court, I trust
thejr vrill learn it from what was uttered by
their own counsel, with a force of eloquence
which, I trust, has made a lasting impressiokl
on them. Mr. Jeffrey told them that they
were treading on deUcate ground, that the
expressions they used were roost, improper,
inaecorous, and absurd, and that what they
said only l^trayed an ignotantse of the bubject
on whidi they spoke. I. trust they will re-
member this lesson, and that all others will
learn to profit by their exajnple.

JiOrd Beiton. — I am of the same opinioii
with the judges who have spoken regarding
this verdict, and I particularly agree with the
words which' have fallen fifom the last judce
who delivered his sentiments. I shall -only
fnrth^ observe, that while I concur most cor-
dially as to the punishment proposed to be
avrarded in this case, I have no doubt either
of the right or the duty of the Court to inflict
a higher punishment when required; and es-
pecially to award the punishment of trans-
pprtation in a case of aggravated sedition;
In the present case, the short period of im-
prisonment which has been suggested, is, I
think, sufficient, all circumstances being coi^
sidered.

Lord Jtatke Clerk. — I am extremely hapmr,
that, under the whole circumstances, of tnu
case, and particularly the recommendation
whidi has been given to your lordships by the
veiy respectable jury who had to try it, I am
eiud>led, in the discharge of my duty, to oon*>
cnr in the proposition now made as to the
punishment which ^should follow upon this
verdict. For I have, upon the most mature
reflection, and the most deliberate, consider-
ation I have been able to bestow upon the law
of the case, formed a clear and unalterable'
opinion, thiU, for cases of aggravated sedition,
such as those which have been aUoded to by
some of your lordships, the proper, the legi*
timate, the necessary punishment for this
Court to award, is, the highest short of a
capital one.

I take this opportunity, however, of stating
as I before did to the jury, that, notwithstand-
ing, the particular circumstances and aspects
of this case, it does not appear to be one of
that highly affgravated class. But I should be
guilty of a dereliction of my duty if I did
not take this opportunity of distinctly stating,,
that, though not one in the highest class of
sedition, the ofi)snce of which these prisoners-
have been convicted, upon evidence, dear,
satisfactory, and convincing, is a spledes of
sedition attended with drcumstances of oon-
8idend>le aggravation. . IallQde|injparticnlari>

1411

bnd t%omai Bnrd/or IMiikm.

A. D. 1617.

cua

to tlM» cMe of the fntener, Tfaoims Boirdi
For, though I did not think it neceAary or
proper in me to dwell on that circomstance in
niy obsenrations to the jury when I summed
up t6e evidence to them, I do now think it
mj duty to slate/ that the Situation in which
that gentleman stood, — ^tbe rank of life in
which he formerly moved, — the character he
poaiessed, — the influence he had, — and, above
ally the commission which he had lately held
aa an officer, do^ in relation to this offence,
and to the circumstances in which it was com-
mitted, render his case of greater aggravation
than that of the other prisoner.
* This gentleman, although moving in an
elevated sphere in the town of Kilmarnock,
and seleeted by its inhabitants to be a com-
missioner of p<riice, is proved, by incootro-
▼ertibie evidence, to have associated for days
witlrpetsons, some of them of the very lowest
laak (for McLaren is only an operative wea-
ver), temuBg a deliberate plan for the meeting
wlikh has bioaghtp him into his nnfortuaato
■itnatioo. I shmild have conceived Mr. Baird
waifid have much better dischifr^ his dotr
to his country, — would have shown a nracn
better attention to the general distress,
0br which I greattv fiBel,'biit trust it is now
ttt a. way to be alleviated), had he confined
liis exotions to contributing, acoording to his
means, for the mitigation of that distress,
instead of taking those active measures which
it is proved he did take, in preparing the
business, — ^in meetings, — ^in concocting the
measures of the day,— and, above' all, in
actually putting in the mouth of the automaton
who api)eared in that box, a speech, which,
when It is examined, will be found to contain
the most scandalous and seditious matter*
For the contents of that speech^ whether Burt
was the real or pretended author of it, Mr.
Baird rendered himself responsible. . I must
therefore say, that, considering Mr. Baird had
filled the honourable situation of Captain in a
volunteer corps, he had altogether forgotten
his duty in ever lending himself as a party to
any Buch proceedings, the guilt of which is
nov attadied to him by the verdict of the

1th regard to Alexander McLaren, I have
only to say, that he has been found guilty of
ddveHng ^a :speech : which answer^ for itself,
and I shall ada nothing more on the subject.

But there is one observation which, in my
former remarks, I omitted to state to the Jury,
and therefore now think it my duty to make,
Qpon the passage in the indictment taken
mn one ot the speeches, in reference to the
conduct of the clergy of Scotland. Your
lordships know well to what I allude. The
passage is^ ** Their Beveretai hirelings would
oonvince yon that you are suffering under the
visitation of the Almighty, apd thexefore ought
to be submissife imder tne chastening stroke."
I have asked myself thb question, after pay-
hig ererv attention to the ingenious and elo-
^oeat observatioxa piade ia order to give the

go-1(y W tUe pttssage; what-ebuid be the true
meaning: of those who were accessory to this
most seandalous libel on the clergy of Scot*
land. I have asked myself, whedier it was
meant to be applied to the E^blished Clergy,
who are thus oranded with being *' Reverend
Hirelings, who would convince the people that
they are suffering under the visitation of the
Almightv, and therefore ought t6 be submis-
sive under the chastening stroke.'' IsUiere
any thing in their character to warrant such
imputations against them ? Did not all those
who attended that meeting know, that there is
not one of the Established Clergy who ia not
eompletelv independent of the crown itself,
and that they hold their situations as securely
as any perBOns whatever do their property r
What is there then in the conduct and darac*
ter of the Established Clergy which could
render them liable to the shamefol imputation,
that, as hirelings, they'oould be guilty of
incidcating any particular doctrines? And
what is the founaation of this charge? It is,
that they are guilty of having endeavoured to
impress on their heareis, that the distress of
the country is to be viewed as the dispensatioii
of Providence. Is there any man, with the
slightest impression of religion on his mind,
who wiU deny, that the severity of a bad
season, the pressure of a bad harvelt, proceeds
from we will of Providence? ' Or was it
meant to be impressed on the deluded and
ignorant hearers at that meeting, that the
Government, or any portion of the people^
were responsible for the distress prevalent in
the country, which had been occasioned by a
bad harvest, that had doubled the price of the
necessaries of life } And yet because resign-
ation to the Divine Will had been recom-
mended by the Qergyi they are branded as
hirelings.

On the other hand, I have asked myself
whether this charge was meant to be imputed
to the respectable body of dissenting clergy-
men, who, almost without a solitary exception,
have shown themselves to be attached to the
best interests of Ae country, and have been
distinguidied for Uieir loyalty and steady
allegiance ? Is it this dass that was meant to
be so branded? If so, they have to tiiank
those of their flodLS who. could gite countenance
to- the publication of such sdtodal against
them* This passage appears. to me to desig-
nate the true character of the publication as
most objectionable and inflammatory. It was
intended to weaken the affections of the peo-
ple to the government and established constitu«
tion of the countrjr, while the character of the
ministers of relision was likewise to be de-
Ipraded. I ask, what would be the consequences
, if such ]^roceedings were unchecked ?

Notwithstanding this circumstance, however,
whidi it was my duty not to omit to notice, I
am happy, that in reference to the strong
testimony borne to their good characters in
timea patf^ bached by the recommendation of
the Jury, we are juimfied in the discharge of

149J «7 Q^QftQIi (II.

fruf ^4hmitF M*f<vw

our liMirad 4ttlr4"'te OMMonncifla. jdbA flM

pImII be impri^^ned ^ f^ roi^iiftf withip jkhf
T«i|b#Qai pt the Caii«^«r«^ of ];4MNmh ((hia#
ipfkkii^ the pimialM^iit ^f kygnMP^^Anl id

(ihfkU 6^4 WMurity 0 |beep the pi^^fs^ for thirfif
Ittfwf «q4fer the p^^^r ^ SJOMJut.; dad Aat
^ijdpaiider M'l4ureo» 19 i«foen^ to his jof^
fnmfit%TWf§, ihaV «9ly 4ii4 ifcwrito |;i^ jUk^
Hipfi peruid undfir tf]# pcM^y of 40^

JU(99(ao4er WLui^n apd ThiMB^ Bs4rd<
p^r fi iag#t oMofyl 9*4 Mtt»n(ive ^ wdcucfLlpojil
pf Ae ««M^ ciicnwitanofn «if 4hft ^^ie tita^
fvw ^ihihitad wmst f qu, t mr of your
fOWItigr has foand b^h lod ewihiQf ^«l» the

to(Bf|B*q^^ gdiUypf ihf orwa of 8edjltioi^
9» ^Pktffc^ Ml th# iodfctpiaiNt. b ii^ I pwi
yipmni )iK»th'9f yw^ a fviinCal dufr for #a« If
Ijlippunpelo yoiib v> pafareiice ia tVJ# ^^eidial,
the tudgi^^ ^ch tho CoDijt ihM fou^^ ii
g^MfjWiy to inlaid against yw. { say, I do

il JvM» a iaof TO nag^ vi^m i pM^ m

Ifal lalPOilg MPtimooy iUw4 ^wai b^iff* lO r9«r
fpaw go9d ch^uEftctpai, I laiaopt thai yoia

M fcunaittad yomatnia Ao haouilM on tWa
wrfo^kaaiate day of M^a TKh lof De$ea»lbary tba
m#4oimt^,attd tt#<otheiir atoi"va»M to gUro
fprfalatifo toiirl^at a iiiiir has prfmowcad Aa
ba stditio^ { ^ tniat and L^ th«t tha
aaaul^ ^ t^l wms^cX, apd ^t Ahift .opin^ony yia^
^wm )ip9fd' pvoQouaoe^ Jby tha whaW Court,
paVtoro kf dnaoffaci^ipl^th of ypu; Aat it
prMl taaah y/o^i, thai ho^ay^ ^pa,iqaDtfy ippo*-
ceat four fwcydioga aow^ w^ .bee.a» th^
di4iaai|to uijcruaay Mid na^fht taye beafb if
the asaiaiple 1^ :heea^eiieii% foU9W€)d» pror
duaftiya of wAf^Ml to the iataraMa .of your
country. I trust also, the salutary chacfc |^an
0 ^aacaadinga of tips description, iirill have
an Mpfpitaol affect on the pwblio mind, by
ahofaiiig, that/mioted af tha >isht of patitiop is,
jmUtJIfBd as tha peofiW lOf l&a free eovwtnr
aia tip s(Ma thair tgnajvoicaa lU) government and
Ihvs dagislatM^ ^ i^> fwapt .ou(t vhat nay
^paar to Aem as rpmsdies, that ijght afforda
vpaoiiaan or.wolaotioa i/> tho«^ ^ho^ in ijba
pmoMcmiou ai t^atjagafal pbjeat» toe sight of
Ihak 4ui|[9 a«4 in> swt^y /of Aa oina /af

laditian.

WWla |bi a ut^iaaM of tWt oonfttif an ear
^ad iia atala their gijavaaoea to the I^^islatui^
^hey awai be canifu)^ that oaiUiar in the pr»*
^us proaeediii|p,4ha speeches and reaaluLioua*
«or ip the peutipu* Otemaelves, they inseit
natter vhicn is cleariy of a criaiaal naloiu,
^aditious in Us tendency, and likely to pvodaoa
Uistiog mischief to their ^pualiy* It inII taadi
thep, thai a)thoagfa emiflad W exeacisa Ihaf
righlt, t)tey miast not. In its vMefmdp be guil^
ofj^ Tiolatioii of law. I t^te^oia trust that
the reoik pf this trial will ha of importani
banA ^ yM^ in the aouma of ycnar latnn
liyes, and that this Court shaU sot, with negaai
tp j9ia ofptbais, hara aoop nmasio^ again to
$ini«Md?avtiou tha Clime ojF saditioa. lUli^
wifSP timat, >that coiuidaring ithp raaomBsandftr
tipuiaf Aha jury, and the knicpt pnwahmaad
whiah, uadar ab ^be ciraumat^mcAi, is about 4»
be awud^d agajinst you, jmi witt &mkf la^
>olva, ahi^ i^eu you agiMwi ratwa taaooatg^
in wluiifpu fonwarly aoT/ed in ^ iMpact^falo
fooy iMmiaill lie iinoeialy byslinyaar heaits^
md #maohiad u> the !^9 aatarasts of ynar
90iMitiy md the canstiaation ja^dea which you
haiia4ha ha^pinaia lia

^e Lord Justice Cleit and Lords Ctmr
missioners of Justiciary having cpnsidered-
l^e verdict above recorded^ in result ^ereot
decern and adjudge tke said Alez^mper Id^Lareji
and Thomas Baira to be carried ftom the bar
to tl^e Tolboodi 5>f Caaongate of Edtnbui^b^
therein to be detained for six mpntfaf from
diisdate, and thereafter unt^l ihey shall fin4
sufficient caution ^d s^yrety, acted in the
books of Adjournal^ tot 'their good bdiaviour
lor the space of three years from and i^er the
ezpiTalipn of the s^ period of imprisonineny
and t^ under the respective penalties foU
towing: viz. The s^d Thomas Baird under
the penalty of 200^ sterling, and the said
Alezandpr McLaren upder t)ie penalty of 401. f
and upon the lapse of the spiid period .of im»
prisonment, and finding caption as aibresaid,
grant warr^t to and oraain the magistrates of
Canongate and keepers of their l^lbooth t^
set fkt said .Thomas Baird .and Ale^^ai^er
M^uven ^ liberty.

(fSiSDtd)

D.B^i^][.P.IX

1451

Trid of miUam Edgar.

A. D. 1817.

C146

699. ProceediDgs in the Bigh Court of Justiciary at Edinburgh,

on two successive Indictments, raised by his Majesty's

Advocate, against William Edgar, for administering

unlawful Oaths, April 9th, May S6th : 57 Geobge III.
A. D. 1817.

COUBT OF JUSTICIARY-
Apml 9y 1817.

lit. Hon. DaM Boyle, Lord Justice Cierk.
. hold Bemand*
LordGiOa.
LoidJPata%.
Lord HaloR.

Cowuelfot the Croitn*

lEU. Hon. Akttmder Maemiockie, Lord Advo-
cate [afterwards a lord of Session and Jufiti-
daij, with the title of Lord Meadowbank.J

Jhma Wedderhmjif Esq. Solicitor-General.

H. Warratier, W. S. Ag^ent.

Camudfor William Egfgm-.

Mm, Oarkj Esq.
Geo. Crmrntotoif Esq.
Tko$» 2%0MMOii, Esq«
Jbnef Momcrieff Esq.
Frtmd$ Jeffrtjf^ Esq.
J. F. GrmU, Esq.
Hemy Coddmmf Esq«
J» A.MiBrrmf, Esq.

G. W. Boyd, W. 8. Agent.

William Edgar and John Keith w6re placed
«t die bar.

Lord J^iUce Cferft.— William Edgar and
John Keith, paj attention to the itioictment
against yoii^ which is now to be read.

<< William Edgar and John Keith, both
present prisoners in the Castle of £din-
boigfa, yon are indicted and accused^ at
the instance of Alexander Maconochie of
Meadowbanky his majesty's advocate, for
his mijesty's interest :' Ihat albeit, bv an
act passed in the fifty-second year of his
present mi^esty's reign, intitaled, * An
act to render more effectual an act passed
in the thirtynKventh year of his present
majesty, for preventing the administer-
ing or taking aniawfiil oaths,' it is mler

' oUa enacted, * That every person who
shsil, in any manner or form whatsoever,
adminiBler, or c^use to be administered,
or be aiding or assisting at the adminis-
tering, of any oath, or enpsement, pnr-
porting or inteading to bina the person
taking tiie-same to commit any treason or

VOLXSKOL I

murder, or any fekmy poniAahle by law
with death, shall, on conviction thereof
by doe course of law, be adjndged ffuilty
of felony, and suffer death as a ielon,
without benefit of clergy.' Andfuither,
by section fourth of the said act, it is en*
acted, ^ That persons aiding and assist-
ing at the administering of any such oath
and engagement, as aforesaid, and per^
sons causing any such oath or engagement
to be administered, thoogh not present at
the administering thereof shall be deemed
principal offenders, and shall be tried as
such ; and on conviction thereof by due
course of law, shall be adkidced guilty of
felony, and shaH soffiBr deam as felons,
without benefit of clergy ; although the
persons or person who actually aikiinis-
tered such oath or engMement, if any
such there shall be, slmlf not have been
tried or convicted,' And farther, by sec-
tion sixth, of the said act, it is, enacted,
'That any engagement or oUigation
whatsoever, in the nature of an oath, pur-
porting or intending to bind the person
taking the same to commit any treason or
murder, or any fdony punishable by law
with death, shall be deemed an oath within
the intent and meaning of this act, in
whatever form or manner the same shall
be administered or taken, and whether
the same shall be actually adminisCer^
by any person or perscms to any other
person or persons, or taken by anv other
person or persons, without any admini»*
tration thereof by any other person or per-
sons:' Yvt Tnvs IT IS AHn^orvaniTT,
that vou, the said William Edgar and John
Keith, are both and each, or one or other
of you, guilty of the said crimes, or of one
or more of them, actors, or actor, or art
and part : In a» far a$ you, the' said
William Edgar and John Keitli, having,
at Gclasgow, and in the vicini^ thereof, in
the course of the months of NovembcHr
and December 1816, and of January and
Febnuuy, 1817, wickedly, maliciously,
and traitoroudy conspired and i^reed
with other evil-disposed persons to break
and disturb the piu>lic peaoe, to change,
subvert, and overthrow the government,
and to excite, move, and raise insurrec-
tion and rebdlion, and espedallyto hold
and attend secret meetings, for the pur-
pose of obtaiiMDg annual parliaments^ and

1471

57 GEORGE til.

Trml of. WObwm E^ar

iu&

universal suffrage, by unlawful and tio^
lent meansy did then and there, both and
eacb, or one or other of you, wickedly,
maliciously, and traitorously administer,
€t cause to be administered, or did aid
or assist at the administering, to a gr^at
number of persons, an oath or engage-
ment, or an obligation in the nature of an
oath, in the following terms, or to the*
following purport : — * In awful presence
of God; I, A B, do voluntaiily swear,.
That I will persevere in my endeavour-
ing 'to> fbim a brbiheihood of affection
amongst Britons of every description, who
are considered worthy of confidence; and
lltat I will persevere in my endeavours to
obtain for all the people in Great Britain
and Ireland, not disqualified by crimes or
insanity, the elective franchise, at the age
•f twenty-one, with free and equal repre-
sentation, and annual parliaments ; and
that I will support the same to the utmost
of my power, either by moral or physical
strength as the case may require : And I
do further swear, that neither hopes, fears,
rewards, or punishments shall induce me
to inform on, or give evidence against any
member or members, collectively or iodi-
Tidoally, for any act or expression done
or made, in or out, in this or similar so-
cieties, under the punishment of death, to*
be inflicted on me by any member or
members of such societies. So help me
C^od, and keep me steadfast.' Which
oath or obliaation dhl thus purport or in-
tend to bind the persons taking the same
to commit treason, by effecting by physi-
cal force the subversion of the established
government, laws, and constitution 'of
diis kingdom. And, more particularly,
you, the said William Edgar and John
Aeitb, did, upon the 1st day of January
181 7» or on one or other of the days of
thai month, or of December immediately
precedittg, or of February immediately
following, at a secret meeting held for
that and other unlawful purposes, in the
House of WiUiam Leggat, change^keeper
in King-street, Tradeston, in the vicinity
of Glasgow, or elsewhere at Glasgow, or
in the immediate vicinity thereof, both
and each, or one or other of you, widcedly,.
maliciously, and traitorously administer,
or cause to be administered, or did aid or
assist at'the administering an oath or ob-
ligation in the terms above set forth, or to
tiie same purport, to Peter Gibson, John
M^Lauchuune, Jcihn Campbell, atid Hugh
DieksQo^ all presept prisoners in the
Castle of Edinbofgh ; as also to James
M'£wAn, now or lately. caTding-^naster at
Hamphiies Mill, Gqrhals of Glasgow^ and
ll*Dowal Pale or Poat, bow or lately
weaver in PiacadAUf Mtreet, Anderston, in
the vimnilgrofiGlaMcrw, wfai», oonsvious
of tbdr j^t-iia ne 'pettBMS, lune ab-
fmmA&km^ ladL:ib«n4iWfi» ; aa abo to

John Connelton, now or lately cotton-
spinner in Calton of Glasgow, or to one
or other of them, and to other persons,,
whose names are to the prosecutor un-
knojvD, the said oath or ooligation, thus
binding, or purporting to bind the per-
sons tsStiog the same to commit treason,,
as said is. (2.) And further you, the said
Wifliam £dgar and John Keith, did, upon
the 4th day of January, 1817, or on one
or other of the days of that mouth, or of
December immediately preceding, or of
February immediately, follpwing, at the
house of Neill Munn, innkeeper and
stabler, in Ingram-street, Glasgow, or
elsewhere at QlasgAw, or in ihe imme-
diate vicinity thereof, both and each, or
one or other of you, wickedly, malici-
ously, and traitorously administer, or cause
to be administered, or did aid or assist at
the administering an oath or obligation in
the terms above set forth, or to the iaroe
purport, to the said Peter Gibson, John
M'Lauchlane, John Campbell, Hugh Dick-
son, M'Dowal Pate,, or Peat, and James
M'Ewan ; as also to James Hood, An-
drew Somerville,^ John, Buchannan, an^
James Robertson, all present prisoners ill
the Tolbooth of Glasgow,, or to one w
other of them, and to olber persons, whose
names are to the prosecutor, unknown^
the said oath or obligation thus binding,,
or purporting to bind, the persons taking
the same to commit treason, as said is.
And you the said WiUiam Edgar having
been apprehended and t^ken. before
Daniel Hamilton, esquire, one of the
sheriffs-substitute of Laaaikshire^ did, in
his presence at Glasgow, on the 6th day
. of March, 1817, emit and subscribe a de-
claration ; and having been taken before
Robert Hamilton, esquire. Sheriff-depute
of Lanarkahirsy you did, in his presence^
at Glasgow, upon the 7th and 8lh days «f
March, 1817, emit and subscribe two se-
veral declarations : And you the sai^
John Keith having been apprehended, and
taken before the said Robert Hamilton,
esquire, did, in his presence, at Glasgow,
on the 6th and 7th days of Biareh^ 1817,.
emit and subscribe two seveiral declara-
tions : All which declaratioas, beipg to
be used in evidence against each of ^<m
respectively, will be lodged in due Ume
in the hands of the Clerk of the High
Court of Justiciary, before which yon
are to be tried, that you nay^have
an opportunity^ seeins the.samt* At
least, times, and places foke^aid, the said
oath or aogagement, or au oath or en*
gagement to the saoie nnipost^ was
wickedly, malicionly, 4m traitoaoualy
admiaiateied, or caused to be atoiiiia->
tend; and aoae pmene did -M or
assist at the admiaistexkig theraof^ and
you the said William E^^pnr and, Jolm
"ntilii ' ttfc./kfltfi and:satrfi- ei '4Hie %^

ItfM

fir AAmmttniiig unbmfiil Oaths.

A. D. 1817.

CISO

trther off jfOQj piiKy dMrao^ ^tdrs or
aetoiv or art «nd part. All which or
paft thereof, being fouod proren by the
venKct of an assize, before the Lord Jas-
taco Geaeia], the Lord Justice Clerk, and
Lords Commissioiiers of Justiciary, yon
the raid WiHiam Edgar and John Keidi
ongkt to be punished widi the pains of
lair, to deter others from committing the
iifce Climes in all time coming."

<' H. Hon Deummovh, A. D."

UST OF WITNESS£8.

t. lUerf EamiUonf Esq. aheriff-depute ^f

«. Doaiel BmuitoH, Esq. one of the sherifb-

substitute of Lanarkriiire.
:3. Darnel M'Catium, clerk ta John Dl?ysdale,

dienff-clerk of LanaikAire.
4k Maifkem Bunu^ derk to George Salmond,

pracorator-fiseal of Lanarkshire.
5. Joim LbMcj eleik to the said John Diys-

dak.
«. Jatipk Rod, writer in Gkisgow.

7. Mtmtkr Caldtry 6bjeriff>offioer in Glas*

gow.

8. Jama Thornton, clerk to the eaid John

Drysdale.

9. Jkrmmkr £baUa% cfaange^eepery Old

Wynd'Of Glasgow.

10. Marion MPLarmj or M'LaohHm, now or

lately servant te die said Alexander
Honter.

11. Jokn Robartumj innkeeper and stabler. Gal.

lowgate Glasgow.
18. Jgne9 CampbeU, wi£» of Thomas Dow,
steam-boiler maker and smith at Gird-
wood and Company's foundry in Hutch-
eaontown, in the vicinity of Glasgow.

13. Jamet Bentcid, now or lately servant to

lieill Munn, innkeeper and stabler iu
ingiam-street, Glasgow.

14. Atium Wiliom, now or lately servant to the

said Neill Munn.

15. Mattkem Fnfe, spirit-dealer in Wilson-

street, Gfasgoif .
1«. Jem Boyd, wife of the said Matthew Fyfe.

17. WilMvm Li^gn^, change-keeper^ in King-

street, comer of Centre-street, Trades-
ton, in the vicinity of Glasgow.

18. -EBtfA Dichony present prisoner in the

Castle of Edinburgh.

19. PUer GtUon^ present prisoner there.

^30. Join M^Limcklanef present prisoner there.
m. WUtiam Simmon^ present prisoner there.
33. ioiMef Bttody present prisoner in the Tol-

booth of Glasgow.
33. Jofai CampheU^ present prisoner in the

castle of Edinmirgli.
M. ThmoM AidoiTy present prisoner there.
H. HoM£ Druicmovd^ a. D.

UST OP ASSIZE.

County cf Edmburgk.
Ctttmet Sbott, of Ballemo.

Bidtard WooU^ of WUf^use.

Wkiie, tobacconist in Dalkeith.
Bobert lAftt, baker there.
Joftft Woody merchant there.
John Brawny farmer, Carrington.
Andrew Johrutou, farmer, Primrose-barns.

Counfy of Haddington,

William ilicAeson, junior, of Drummore«
John Sonunervdl of Moreham.
WUliam Hcq/, farmer, Ilowden.
John Brodiey farmer. West Fenton.
Bobert Uopey farmer, Feuton.

County of UnUlhgow,
WUliam Gien of Mains.
William Dawion, younger, Bonnytoun.
John Trotter y farmer at Stacks.
^bert Taylor, residing at Blackness.
George TumbuU, farmer at Northbank.

Cify of Edinburgh.

Robert FraseTy jeweller in Edinbuigb.
lliomas Bichardton, merchant^tailor there.
IXivt^ Whitelawy watdi^maker there.
Peter Feddie, trunk-maker there.
William Trottery upholsterer there.
Alexander BuueUy coach- maker there.
John Inverarity, upholstcret there.
George Yule, mercha** there.
Alexander Aintlie, saddler there*
John Steel, confectioner there.
James Innet, gunsmith there.
Daniel Forrest, hosier there. ,

Peter SawerSy saddler there.
Creorge Hunter, merchant there,
William Boss, tailor there.
Charles McLean, draper there.
John Laing, saddler there.
John Mcpherson, tailor there.
Francis Davutson, confectioner there.
William Cooper, boot-maker there.
William Dumbrecky hotel-keeper there.

ToumqfLeith,

John 3iPKemiey merchant in Leith. ^

Archibald Cleghom, corn-merchant there.
Thomas Mortouy ship-builder there.
Robertson Paterson, painter there.
Charles Bobertson, merchant tliere.
John Sanders, agent there.
JoAit Glover, wright there.

An. Gillies.

d. montpevvt.

David Douglas*
L»rd Advocate, — From certain circumstan-
ces, I find it proper to move the Court to
desert the diet against John Keith pro loco et
tempore. He will therefore be committed to
prison upon a new warrant.

[This motion was accordingly agreed to.]

Lord Justice Clerk. — ^William Edgar, what
do you say to this indictment? — ^Are you
^uilt^ or not guilty of the charges contained
in it^

WiUiam Edgar, — ^Not guilty, my I/>rd.

Mr. CSra»i^(Wfi« — ^I am of Qounsel in this caae

1511 ^ GEORGE III.

for the prisoner at the bar. Hie indictmeot,
which your Lordships have jtiBt heard read,
charges the prisoner with a capital offence,
that of administering an oath purporting or
intending to bind the takers to oommit the
crime of treason.

My lords, this is not a point of dittay re-
cognized by the ancient and common law of
Scotland; neither the nature of the offence
itself, nor the manner in which it is to be
charged, is pointed out by any precedents or
authorities familiar to your Lordships. It is
an offence recently introdnced by a special
jBtatute ; and, so far as I know, no trials havft
taken plape hitherto upon that statute in Scot--
land, acdordinir to your forms.

It will bjB admitted, that this crime is of a
nature peculiarly deUcate. The life of the
prisoner at the bar may depend on Che con-
struction to be put on words alone, without
reference jto overt acts by which they may
receive a clear and unambiguous interpretation.
To administer an oath without judicial authority
is perhaps riot a very commendable prajctice,*
and in a moral point of view it may sometimes
be improper, as tending to lessen the obligation
4>f an oath, when thus applied to frivolous
or improper subjects, o^on frivolous and im-
proper occasions^ But, my loids, at the same
time, it h not in itself an illegal thingf it
is prohibited by no law; and I understand,
jand am well informed, that it is a common

* Lord Coke says (3 Inst. 165) ^ Oaths that
have no warrant by law, are rather nooa tor-
nienta guam tacramenta; and it is an high con^
tempt to minister an oath without warrant of
law, to be punished by fine and imprisonment."

The cour^ of King^ Bench has often repre-
hended, and discouraged as much as possible,
the taking of voluntary aflSdavits by justices of
the peace, in extrajudicial matters. In the
case of Bramah v. The — '—Fire Insurance Com-
parui, Mich,T. 1800, in B. R. Lord Kenyoa
C, J. said ^* He did not know but tliat a magis-
trate subjects himself to a criminal information
for taking a voluntary extrajudicial affidavit,**
3 Chetwymtt Bwm^ 529.

''It is much to be questioned," says Mr.
JuUiee Bbdatom^ ^ how far any '' magistrate is
justifiable in taking a voiluntary affidavit in
any eztn^judicial matter, as is now too frequent
upon every petty occasion : since it is more
than possible, that hj such idle oaths a man
may frequently in Jiro contckntut incur the
guilt, and at the same time evade the tem-
poral penalties, x>f periuiy." 4 Qmm. 137.

It must be regretted that the highly improper
practice of administering what the learned
commentator terms'' idle oaths,*' should be still
continued by any magiatrates, notwithstanding
the reprehensions contained in those books
with which ihey are generally 8iq>poaed to be
acquainted.

t Seethe preceding note, and the observa-
tions of Le Blanc J. in EaMi case, ant^ Vol.
10, p. 1609;.

Trial of WUUamBdgm^

[15S

and daily piactice. It is practised in many
associations and Maternities; for example, in
masonic meetings, when there is not the least
intention on the part, either of the persons who
administer, or of the persons who taae the oaths,
on the one part to impose, or on the other to
undertake an unlawful obligation. To make a
common pralctice of this nature the ground of
a capital punishment, when the guilt or inno-
cence of the act depends on the interpretation
of the mere words used, may appear not per^-
haps altogether in unison with the mild and
equitable spirit of British jurisprudence. Your
lordsbqis are well acquainted with tbe statnte
1. M^ry, chap. Ist, which swept away ficom
the law that mass of constructive treasons by
which it had been previously polluted— a stai
tnte hdd by the natu>n at die time it was en-
acted, as one of the greatest blessings ever
conierred by the legislature, and still looked
up to by their posterity vrith admiration and
gralitade. Though constnietive treason was
tnus abolished, yet the statute upon whidi the

Sresent indictment is founded tends to intro-
mee a capital felony, wbiah, though not pi^
nished as treason, is yet punished with death,
the n^ifliiMi sifpJidMn of the law.

This statute was no doubt passed at a time
when banda of armed men were committing
evey species of atrocity, when they were
buminr, robbing, and murdering, and in
particular when they were.compellii^ persons
by force to swear oaths, unquestionably and
clearly imposing an oblisation to oommit
felonies.* In this state of things, a speedy
and efficacious remedy was necessary ; and
no doubt this statute was passed with Uie best
intentions, and may have been productive of the
most salutary consequences. All &is being
avowed, yet.considmd as a standing rale,
incorporated in the criminal law of Scotland,
and applied to other occasions than those
contemplated by the legislature, it was not per**
haps penned with all .the caution requisite,
and may involve principles which it vroiild not
be very safe to admit permanently into our
system of jurisprudence. But it is not your
lordships province to judge of the merits of
the enactment, and far less am I entitled to
pronounce an opinion upon diat subject. - It
makes part of the statute law of Scotland, and
that is enough. But althou|^ I am not enti-
tled to inquire into the expediency of the law,
it is my right, and it is my duty, to inquire in
what manner the words of it stnU be constni-r
ed — ^in what manner, being part of the erimi*
nal law of Scotland, it shall be applied and
accommodated to our form of juoidal pro*
ceedings. And, after folly considering the
subject in this more limited view, I trust
I shall be able to satisfy your lordships that
the libel in this case is not relevant, according
to the principles of the criminal law of Scot-

* See the debate in the House of Commons
on the motion for the introduction of thia ata^
tute 33 Hans, Farl. Ctfb. 31.

1531

^ AMmtkring utJtu^Oalki.

iLD. 1817.

tia4

land. This is a subject of the nlDMNit impor-
taoce, and tot iririch the attention of your
lordships is now most earnestly requested.

In tliis indictment the mijor proposition
sets fiHtfa, that, ** Albeit, by an act passed in the
fifty-second year of his present Majesty's reign
intimled, 'An act to render more effectual an
act pused in the tbirty-seTenth year of his
present Msjes^, for prerentinff the administer-
mg or taking unlawml oaths,^ it is, inUr aUOf
enacted, l^at every person who shall, in
any aaaoier or form whatsoever, administer,
or canse to be administered, or be aiding or
MSisling at the administering of any oath or
engagesBcnt, pmrporting er iotendiog to bind
the peiaoo tBiting the same to ooo&mit any
treason -or murder, or any felony punishable
hj law with death, shall, on oonviction thereof
by doe- eonrse of law, be adjudged guilty of
tdofo^j and sufief death as a felon, witbout
benefit of dergy/" There are then other
Manses of the statute recited in this major pro-
poaitioD.

1 have no objections to make to the migor
|NopQsition of this indictment. It is oorrect
SB ledtiBg the elanse of the act eonstituting
the crime sriiieh is now to be tried; and,
theiefofe, in oonsideiing this proposition, the
«iily thii^ to be attended to is, toe nature of
the crime which' is here stated to be punish-
able with death. It is the administering an
«ath, ** purporting or intending to bind the
penon taking the same to commit treason or
WBider, or any folonjr punishable with death.''

Upon readmg this clause, your Lordships
wiU be satisfied, that it is not sufficient to con-
stitnCe this crime that an oatb was adminis-
teredr— it is not suflBdent that the person
administering that oath had criminal intentions
at the time— or that he was engaged at the
time in criminal practices — ^it is not enough
that the person who takes the oath intends to
eommit, or is in the eourM of committing
tfiminal practices. All that is insufficient to
constitute the crime here set forth. It is ne-
cessary,—it is the essence of the crime, — ^that
the oiik administered shall itself purport
or intend to bind the taker to commit the
crimes specified in the statute* It is quite
possible that two persons may be actually en-
gaged in committing the crime of treason, and
wlule thus occupied, that one of them, with a
view of practisiiig a deceit on those who were
present^ and of ensnaring them into the traitor-
ous conspiracy, should administer an oath to
his aaaocmte, under the pretence of binding
him lo commit the treason. But if that oath
did not in ftct impose the obligation, it could
not wanrnnt a oonvictioii under this statute.
It mt^t be an orert act of treason, and all
lhe.persons present, be who administered the
eath, he who took the oath, and the spectators,
might be punishable as traitors, yet still an
indictment under thepresent statute could reach
■oue of them ; for to make the statute apply,
it is efssntial dmt the oath administered pur-
ports or iateiKU to bind the patty taking it io

commit treason or feloOT. An oath not con*
taining that obligation, however nefarious and
detestable in- itself, may be the ground of a
different prosecution, but it cannot be the
ground of the charge now before your lord-
ships. All this is too dear to require any
illustration ; it must be manifest to every one
who reads Uie words of the statute.

Having said thus much on the major pro-
position of the indictment, we now come to
consider the minor proposition. Here, as in
other cases, there axe two subjects of inquiry ;
1st, Whether the fiicts set forth in the minor
amount to the charge in the major? and, 2nd,
Supposing that they do, whether they are spe-
dned with that precision and minuteness whidi
are required, by the law of Scotland, to oonsti-
tttte a relevant indictment ?

The minor begins in these terms: '^Yet
true it is and of verity, that you, the said
William Edgar and John Kdtb, are boUi and
each, or one or other of you, guilty of the said
crimes, or of one or more of them, actors or
actor, or art and part : In so far as yon, the
said William Edgar and John Kdth, having,
at Glasgow, and in the vidnity thereof, in the
course of Uie months of November and De*
cember 1616, and of January and February
1817, wickedly, malidously, and traitorous^
conspired and agreed, with other evil-disposed
persons, to break and disturb the public peace,
to change, subvert, and overthrow the govern-
ment, uul to ezdte, move, and raise insur-
rection and rebdlion, and espedally to hold
and attend secret meetings for the purpose of
obtaining annual iiarliaments and universal
sufirage, by unlawnd and vident means, did,
then and there, both and each, or one or other
of you, wickedly, matidously, and traitorously,
administer, or cause to be administered, or
did aid or assist at the administeiin|^ to a
great number of persons, an oath' or engage-
ment, or an obbgation in the nature of an
oath, in the following terms, or to the follow-
ing purport." — And then the words of the oath
are recited. — *^ In awfol presence of God, I,
A B, do vduntarily swear, That I will per-
severe in my endeavouring to form a brotner-
hood of affection amongst Britons of every de-
scription, who are considered worthy of con-
fidence ; and that I will persevere in my en*
deavours to obtain for all the people in Great
^tain and Ireland, not disqualified by crimes
or insanity, the dective franchise, at the age
of twenty-one, with free and eqinU represen-
tation, and annud pariiaments; and that I
will support the same to the utmost of mv
power, either by moral or physical strength
as the case may require: AndJL do further
swear, that ndtber hopes, foars,* rewards, or
punishments, shall induce me to inform on,
or give evidence against, anv member or mem-
ben, collectively or individudlyy for any act
or expression done or made, in or out, in this
•or simikr societies, under the punislunent of
deadi, to be inflicted on me by any member
or members of such societies. So bdp me

16S)

57 CBOBOE IIL

Im theiiidiolmeBt» thai tids oath, «r bI ^mm
mn '••Al af tli« 8MI16 farpofl^ i«u ftdiiiiiri»*
4«re4.

li is here Mt fitrtby thattW prinMr at the
bar WW is the couie of coomiiCtia^ certain
Mnoastriaie^ ISraBecrhaa^ your lovAsMj^
will obserra^ an aot kid aa a aabatantiva
chagga a^ui tha piiaaatr; and it it tiapos-
aiUa tittt tkay ihouid ba to laid in this indict,
■leal, kft a prisMiar oaa ba chirged with no-
ikiBf Ml die ntmay but wiuit anounta to the
ariaat laid in tha aaajor prapoiition« I( is
aaid, that tba mitosiar lunriaf cositDilted tbota
•ananaty did adamitter Ihe oath. But thote
cnnes are noH hiid with a view to iniict pa*
«iahBftettt fla bin fof then, though peibapt
they are stated in motkm probtiihm of another
critne. it is inooaspetent in the minor propo-
rtion of the iodietmeBt to say that the ptisoner
at gnilty of a felony aot charged in the nftjoty
ia Older to pnnish him for that felony. Tha
^haiye in thn indictmeBt is for administering
ma nnlawfol oath ; and wbateTer facts comiect-
jed with a eeparate criase are set forth in the
aainor only, they make no part of the charge
•against the prisoner at the bar.

I trust I shaH aftarwaids show, thbugh it is
fiat at preaent the time to make inqoiry into
IhiSy that however atroctoos the crimes here
Jiffirmed to have been committed by the pri^
•aoner may be, as they are in UicmselTCs totally
iffeloTant to infer the crime with which he is
vaaHy charged, so at the same time it is in-
coaspelenty according to the law of Scotland,
4o bring any pioaf of those crimes. This I
jhall postpone for after«oensideralioa, pro-
«aeding, in the mean tinie, to consider the
oath wideh was administered, which is said to
purport an oUigalion on tha taker to ootnnit
treason.

Tha oath is ta tbese words >^* In awfol
oreaenae of God, I, A B, doToluatarify ^wear,
That I will persevere in my endcaTouriag to
form a brotherhood of afihction amongst Britons
.of every daaeriptiom, who are considered
•worthy of confidence; and that I will per-
aevare in my endeavonrt to obtain for all the
people in Great Britain and Ireland, not dis-
anaiified by Crimea or insaai^, the cibeotive
vancbise, at the age of tweatr^one, with free
and equal representation, and annnal pariia*
manls ; and that I wiH support the same to
te atmest of my power, hither by moral or
physical strength^ as die caae mar reqaiiv:
And I do further swear, that neither hopes,
foata, lawanfc, or punishments, shall induoe
me to inform on, or give andenoe against, an^
momber ot mcftiben, coHeotively or iiMli«».
dually, for any aet or evpression done or made,
.ia or out, in this or similar societies, nnde^
-the panishauiat of deaith, to be iniioted on nne
by any member or members of aueh societies.
So help me G«d, and ke«p me stedfast/'«M.
Then it is tfl|id, ^ Which oath or oiligatioa
did thnapwpart w iadend to band the persona
tafcitg iio^ma m aottmit maton^ by mctiag

TfUffmOminSdg^

Lisa

by phjnieal force flie sulM<Mion of the estaA>-
Kshod igov9mmm%, laws, and oonstitation of
this kingdom."

Bert the prosecutor recites the oath, atad
aajia that it purports an <Mgation on die pter-
son takiag it to commit treason, by effecting
by physical fotoe the snbvorsion of the estab-
lished goremment, laws, and conslituftioa of
this kiagdom* Bnt it is not enough that the
piosecutor says it has that purport. If, on
eondidering the oath itself, your lordshipa are
of opinion that it does not imply what tho
prosecutor alleges, his tnere avermeat that it
ia an oadi of a certain purport will not mako
it so ; and he is wot entitled to have that
question sent to the jury, for that would bo
taking from the Court the question as to tho
reloTancy of the indictment.

Suppose in an indictment for perjury, tha
prosecutor, after allegibg in general terms that
this spedftc offeiice has beeb committed, pro-
eeeds ix^ the minor proposition to give the do*
position of the prisoner in detail, and aAer«
wards to contrast it with what be alleges to be
the troth, asserting that there is such a manifest
discrepancy as necessarily implies the' com^
missioa of the crime chai^g^ — still his mem
assertion on this snUect will not be sufficient ;
and if the Court nail be satisfied, on com-
paring the alleged truth with the alleged felse*
nood, that there is not an absolute contra^
diction between them; in other words, that
what the prisoner has sworn may be recon-
ciled with what the posecutor says he ought
to have sworn, you will not hold the indict-
ment to be relevant, nor send the charge to a
jnry to be tried. That being the case, if your
lordships, on reading thb oath, be of opinion^
that it does not purport what the public pro*
seeutor says it.parpoiu^ then I say this ia an
irrelevant libel.

It is true that, besidet the word ^ purport^
iBg,** there is aaetber word used here, ** in<*
tending.'^ What is the signification of tho
word iniendiMg I ^hall afterwards consider, and
it is of material importance to this case ; bnt
let us see, in the &rst place, what is the signi^
fication of the term purport. This term, aa
every body knows, is applied to deaote the
meaning of words as gathered irom the word9
themselvea — ^the meaning as eipreued in eon-«
tradistinotion to the meaning which may bo
mmfechutd from extrinsic feels or circam-
siances. Look then at the words of the bath,
and see if it purports what the prosecutor saya
it does. No man who reads it can say so.
The words of the oath are, ** 1 wiH parsevero
in my endeavouring to form a brocherhood of
aCBOtion amongst Britons of every description,
vfho are consuiered worthy of' confidence.**
Nobody will pretend to say that there iaan
obUaation to commit treason here. There ia
aa obligation to form a brotherhood of affeo-
tioa. AH the subjects of this ookmtry are
btotfaers ; and it is boooming that they shoaM
dwell together in unity. Inis cannot pwrpoit
any thing to b» fimi thaiA ia iaipt^r.' Th^

457-1

Jor AJmmUtsriMg vmUi^^A Oaths*

A. D. 1617.

LIM

o^ then gpM on, " That I will perstv«ra in
my end^^iTcmn to obuia for «U the [^opl« oif
Orest BitMa tnd Ireland, not disqiu^ed by
criiaes or iosaat^^ tlie elective firamchise^ et
the age of twentT-ODe, with free and equal le-
pfBfentalioD, and aoaual padiaBMita." There
are few penons at preient, who are qua^ified^
^iiher horn their natural paUg or inforMMOioOy
tp jodge of subjecli of this kind, who witt b»
of opiaioii that either anaoal pariiamenti or
VDwersal saffrage would be of adrvaotage tp the
ipbabitaQfa of this countiy, or would ooaduoa
tio aay thing else than anarchy in the fi^ in-
stance, and deapotism in the eod* 9ulr
although this be true,, it ia well known to
your lordships, that it ia the piivilege of every
inbject in this oountiy, to fonn hia own opinioo
on aobjects of a poUtieal nature; and.haviiig
formed his opiaion, he may make u^e of law*
fol means to have such dianges produeed in
the ooostitntion or goveranent of the cooqtry
%sbe may think expedient. The lagi^Utare
Ipi^at diment tiqses alleied th(» duration of
padiament and the. mode of suffrage ; and if
ai^ pmoQ believes that annual parUaments
and universal txifftt^ would be of benefit to
the countiy, it ia no crime to use lawful en-
d«.vours to obtain these object^ which can
only be obtained lawfully by ap act of thi»
British parliament itself:; and you know» tha^
petitioos ibr such objecls ve daily presented
la.pvliam^ot, and daily received.

It is said in the oath, " I will penevere" in
^lese endeavours. If the endeavours are law*-
&1, the perseveriog in: them is np orime.at all«
It. is not said iu the oath^ or in a^y part of th^
indictaBent, that the prisoner was engaged in
ualawfiil prqeots for these, purposes. It is
ssid, indeed^ iu the indictment,, that the peD*
sons who administered the oatfi were engaged
in a tMflsonaible cpaipiraqr; hut there is^no
^>ecificatioii. of circjamstaneas to evinee tha
potoiMf^s a^ession to this. conspi'acj> . Df>r if
t^ effence of oonspin^y apy part of the sub-
stantive charge made a^^nst him in the in*
dielBsant. That being th^ case, tbeoa^i or
obligation to endeaivour to obtain annual paiv
Kanaants and univeisel suirage, is:an o)>Hg%>
tioo in itself perfectly inooeePlt. Your lei4r
ships will notsav that these eodaavouts ata
vnkvwfiU, nor witl you impute iniptoper moy
tives to the pa^ inproseeutiii^ them, for yen
are not antkorised to make such an in^dr
Bient. yfbm arpqtsenjpromisos to use eriN^
eadeaflroof to aoeen^ish Vk objeet, the gene-
ality of this ezpinssion vnll oeivar ciotend it
to uola^«f«l endeavouvs-^it west he .construed
with the comaan and necassaiy limsiatian^
Ihat he wiUiose evaiy endfnvewr.wbieh tefnay
hmUOfVH* Ifthis,pi»nciple.of4)QBStinctiaD
ware n9t«dQp4ed# the onh of jal^wmlion itsalf
auglit bnem^arted intn wa ohiigalian to
MnmittmesaA. "• I do Mhft% .proaiiM, it
fJb» nii^oaief mjfpovNBT^ u^/mppoit, wMnnytain^
^M-tSntod^MiisiimMiontof Aa Oa^^ fnup

it by lawfid mmm l»if«itjVri

The oath in the indietmeat then goon on tfl
sqy, '' that I will support ik^taam to.the ^tmcil
of my power, either by moral or physicfyi
strength, as the case may aai|niBe/* Support
wbatr UereisanainbifguitymtheoMth; audi
an ambiguUy which shews how hamgrUms it in
to admit constructive treasons reared 14ms
words uttered by persona not critically an*
quaiated with the imperfect infltmment «f
language. Interpret this passage any wi^ yon
ehusa» i^ will not anUHUit to any thing criminaU
Even supposing that it binds the party takiM
the oath to*obtain the olyects which:aie apedted
ipMtrbymoralioQphvsicalibro^whatisthe isMltl
it is, that lasrliil omaou am to be ohtainsd ^
lawful measures. No person cnn he hUmen
£or exerting his utmost! effoKs undnr tel
limitation^ Or take the only other oonstnao*
tion which can be putiupon this clawa<of tiki
oath, and auf)pofin;tha party to jwenr^ that tag
will siipport annual parliamems and unmemal
suffuge tp the utnumt of his pownr, mknaMnii
0^$ ihall W 2ncn aklmmdi that he wiU wm
his best endeaivoum tp^continua and. perpetuata
these iroaginaiy. bl^mipgp, when Aaiy ahatt onon
have been psoonred for theceuntiy; lathm
an unkwiful obligation? licevtmnlyia imt4
If lawfol d^cla are obtained in a lawfnl
mnnner, then, it is the dnty of gnod mbjanli
to support and continue them* So ihn whaii»
ever construction you put upon this clauat<of
the <mii> whether ^mt snfipeae it tn relet to
anteiiprises for obtaining what does not afarandy
exists or for suppoiting imptoremania alW
th^ shall ba .established bylaw, H is in eithei
case perleotty jfrioeentt^-With segflird to thn
Uims '' motel aed.physimi atmngth,'' Imay
remark, a man may support what is lamM
either by the.one«oa the othet^ and yet baAree
Irem blame. The indindnala attempting tn
piQcam annnaliparliamanls and-nnifamid Jttfc
hagft, mlc^i emplnr their mond.sMngth for
that pnrp0f e by usinf. trgumentSi; or thaif
phynioal atrangili, for instanne^ by being dam
patched with lettem m>d.mssaagis,.or goinjg
about to seboit ammbemof pasUmnent for thait
snppettrf Ajmrsen may eieot bnalingi, e*d
may keep on the rabble-4ie amy employ. hii
phynsal Ibsae in twenty dtfismnt'ways withmH
doing any 4hing4lmt ia unlawfol.

The oath eondades, "M4^ I. doi fnsthnr
swnas, that naithnr fasfiei, foam, raiwmdi».off
punishments, shall induce me tO'infom^.on, ni
grie^videnaa against, anymmnber. or mmm
bem, eoUnitivaly or inditadnally, foe anymda

^^w **^^^n^vn^n^p^^^^^w a^^^^an^a? ^^* ana^n^^^^n earn jnna ^n^^^m^ ^^n» nnamm

or.svmte aacietins, under tha.pnnishnwnt^
death, toube iuAlclad *on Jmi hy nny, mmBhar.or
membaw. «f. anoh. saeielics*. SDhelpiiitn
God^ and Imep mnetedfitfl*'' Itadmitnicnm^
itiaimpro|ierjfor any person .to Andmlnkni an
bbligatmnnait fto.giTe midmse^ B«it4hni.ia
notaooUigationrlnnanmntlraan>ns itinnnty
it mjnisdflnmmnr miHiimliishi wmtew

*Npt»one nl

laCsiihn'nB^hiaan

not by folony, aiuder, or treason.

1501 ^7 GEORGE tit.

Read the oath from beginiung to end, and say,
does it impose any obligation to commit
treason T Itead the words a hundred times
oyer, and still it will be imposdble to say that
such is its purport. For it may be explained
to mean an obligation to endeavour to obtain
lawful objects, and cannot fairly be explained
to mean any thing else. I am speaking of the
purport of the oath, and not of what might be
the intention of the parties at the time ; and
if that oath does not purport treason, there is
an end of the present indictment.

The public prosecutor immediately adds,
^ Which oath or obligation did thus purport
ot intend to bind the persons taking the same
to ooramit treason, by effecting by physical
tooe the subfersion of the estaUished govem-
menty laws, and constitution of this kingdom.*^
No doubt Uie prosecutor makes that averment.
But I say the averment is utterly unfounded,
and that the oath does not purport the obliga*
tion vdiich he says it purports. It is for your
lordships to judge whether it does so or not ;
and if you are of opinion that it does not, then
nodiing that the prosecutor affirms on the sub-
ject can have the smallest influence, as he is
not entitled to go to the jury, and leave it to
thAsm to determine what is the purport of the
oath; for that would be to take the relevancy
of the indictment out of your hands into his
own.

The prosecutor has given you a ffloss or
comment on the oath, and you will judge if it
be coirect. The civilians nuTe a nickname, I
forget what it is, for a gloss which extracts a
meaning from the text exactly the reverse of
what it naturally bears. Ibis gloss is precisely
of that nature.

In the oath there are the words, '^ I will
support the same to the utdiost of my power,
eimer by moral or physical wtrmgtK" in the
prosecutor's comment the word force is substi-
tuted for strtngjth, Tliat may be thought im-
material, and to have proceeded from inatten-
tion, but it is not so. It has been introduced
in order to insinuate something different from
what the oath purports. Strength in common
language applies to bodily exertion. Force
applies to an assemblage of armed persons.
Although you can speak of an aimed force,
you cannotspeak of an armed strength; acircum-
stance which shows that the meaning of the words
is not the same. The prosecutor by this clause
means to insinuate, that the parties were to en-
deaTour by an armed force toootain their objects ;
a purpose which cannot be inferred from the
woMs of the oath at all. It is further said,
that the oath was to bind to the ^' subTcrsion
of the established goremment, laws, and con-
stitution of this "kingdom," but there is nothinff
flrom the beginning to the end of the oath
about eHtdimg' any thing. The parties 'bound
themselves to use endeuTouis to ^ obtain
ananal parliaments and universal suffrage;
and these, if obtained in a lawful manner, are
not a subTe'isibn of the government, laws, and

The gUMS| tliexe-

Tritd of WUtiam tdg^

[tea

fore, has extracted a meanine from the text
exactly the reverse of what uie words bear..
The public prosecutor cannot be allowed to'
do this ; ana Uie libel on that account is irre-
levant.

But I go forlher, and I request you to ob-
serve what may not at first sight be apparent,
but which, on full consideration of the law,
vfill immediate^ occur to all of vou, that even
on the supposition that this oath did purport
what the public prosecutor says it does, yet it
would not purport an obligation to commit
treason. For I maintain, that persons bound
to effect by physical force the subversion of
the established government, laws, and consti-
tution of the kingdom, are not necessarily
bound to commit treason. It b well known
to your lordflihips that there are two great
species of treason in law. We shall dismiss
from our consideration at present a great many
treasons, such as debasing the coin, murdering^
judges, Ibc. with which the public prosecutor
does not and cannot pretend that this oafli
could have any connexion whatever. There'
are just tvro kinds of treason specified in the*
statute of Edvrard Srd, to which it could pos-^'
sibly refer; Ist, compassing the kinff^s death i
2nd, levying war against him. I shall after-^
wards speak of a third treason, established by'
a snbseauent act, the 36th of the king.

In order to make an indictment for ei^erof
these two kinds of treason relevant, it is not
enough to say that the party intended to effect,
or has effected by force, the snbversi<Mi of the
government, for that b not necessarily com-
passing the death of the king, or levying war
against him. Though some of the acts pei^
formed in subverting the government might be
overt acts of treason, they are not necenarily
so.

In order to establish the first kind of treason^
two things are necessaiy. You must have at
wicked imagination in the mind, namely, tha
compassing of the king's death ; and you must
have overt acts, which the law considers as
nroof sufficient to establish that imagination.
But it is not laid here that the oath bound those
who took it to compass or imagine the death
of the king. I cannot illustrate my argtimoBt
as it applies to the case before you, better thanr
by appealing to an extreme case, with which yoa
are aliwellacquainted-^die trials of theregiodes
in the 1 7th century. Yon will recollect 1km the
indictments were there laid ^* for compaldng
and imagining the death of the king f* and the
overt act of Siat treason was cutting off the
head of the king. It would not Imve been
relevant to have merely charged the act of
putting the king to de^tb, as the crime of
treason— the crime consisted in the imagiiMtion
of the heart ; the death of the king was the
evidence that that imagination existed. In the
same manner, the subversion of tilie laws and
constitution of the kingdom is not treason^
tfiougfa it is probable in effecting that subvert
non overt acts maybe coBUQittod|irhidk iihid
evidtnoeoftieasoab

fir AJmHuUrimg mdiHofii Oatkt'

1611

TIm oUier tpeciat of treason which I

tkmed, was levying wv againit the king. To

ooDstitale that ciimey the use of phytic^ force

in the snhvenioo of the laws or ooDStitutioo of

the kiagdoiD is not sufficient. Ohe of two

things is neoessaiy; either, on theone hand, the

perMOS vsing th^ force most be assembled in

we gnise of wajy as it is expressed in the

Nonnan jargon of the law, mrkUi mgdtrgmrrmo ;

they most proceed sub speck beUiy amie4 with

warlike engines, with ooloots displayed, and

to the sonnd of tnunpets and drums : or, on

Ihe other hand, there anst be so great a mul^

titnde assembled, that their nnmben may €on»-

pcnsate for the want oC the pride, pomp, and

dicnastanceofwar. Certain pmons assembling

together and proeecoting an illegal oljeotby

mo^ does not nfecessazily oonstitutealevyingof

war agahist the king, — unless it have the chano-

teristics • I ha:Te mentioned, it is not treason.

I am unwilling to detain you in k case of this

kind by quoting authorities on the subject. I

coold quote a great many, but I shall content

myself with referring you to Hale and Foster,

in their dmpteis on Uiis subject.

There is a third treason, that of conspiring
to levy war in order to accomplish certain ob-
jectsy as to put the king under restraint, to in-
timidate partiament, or force the pariiament te
enact certaia laws. This treason was intro*
dnoed hj the d6th of the king, e. 7.*

I ask, then, whether this oath, gmating that

A. D. 1817.

Il6ft

TOfriott aceompUshed by foree ; yet no lawyer
will maintain that this is a case of high trea-
son , that it is a case of compassing the king's
death, or of levying war against him, or of
conspiring to levy war.
1 repeat, then, that although this oath did

Surport what the pubhc prosecutor says it
oes, but which most ceruiuly it does not,
still it would not support the charge in the
major proposition. If the prisoner was ac-
cused of having subverted the constitution by
force, could that charge go to trial as a charge of
high treason? assursdly it could not; and for the
same reason a charge of having administered
an oath purporting to bind the taker to sub-
vert the constitution by force, is not a charge
of having administered an oath binding him to
commit treason.

I haTenow^Bonsideredthe oath as ** purport
tag" to bind. That word, as I have endea-
Toured to explain it, and I trust I have
sonndiv explained it, implies nothing more
than the meaning of the oath as it may be
gathered from the words set forth. But then
the public prosecutor says that this oath pur-
ported, or mUmkd; and the question comes to
oe. Does the use of the word itUend make any
differenced I apprehend it does not; for the
mtembnesii of a writing or speech in the or-
dinary case is just the same thing as its pur-
port. You will observe the Act of Parliament
does not say, if the person administering the

it pwpovta what the prosecutor affirms it pur^^ "baUi intends to bind to the commission of

poffta^ iwposet an obligation to oemmlt any
one «f these three distinct species of treason?
I have sdfcady stated the reasons, by which
jom lordships mast be convinced diat it does
not bind the taker to compass or imagine the
death of the king. Just as little does it bind
him to levy war against the king, or to con-
spise to levy war against htm.

I have said 'that force may be used, nay,
saeeessMly used, to subvert the constitution,
and yet no war be levied against the king.
I shall give an instance of this, which appears
to me dedri^e on the merits of the present
qneetioiK Suppose dmt the House of Lords
(which of course they never will do) should
pass a IhU to abolish the House of Commons,
or their own House, as a branch of the XjOgisla-
ture (and if ouch bill passed into a law, it
would eflhet the complete sabversion of the
coMstitution); Suppose, in the next place,
that this bill, vrhen carried to the House of
Comnront, ^ould diyide the House equally,
and of eonsequence its fete shoald depend on
the easting vote of the Speaker. In those
cntuBslaiices, if twenty or thirty individuals,
not armed modoguerrmOf but widi stidu in
their hands, shoald go down and compel the
Sjpedcer by threats or violence to vote tor this
fadl, — ^dbe bill having afterwards received the
rmT assent, would operate as the subversion
of the constitution, and it vMmld be a snb-

* Hade perpetual
c. 6.

VOL. xxxni.

by Stet. 57 Cieo. 3rd

treason, that his intention shall infer the crime.
This is not the meaning of the statute; for it
requires, that there shall be on oath or engage"
useiU '< intending" to bmdf &c. It is the
intendment of me oath, not of the peraon,
whidi the statute mentions; and, thererore,
though it were perfectly dear that the prisoner
administered this oath, and that it was his
intention to bind the party taking it to com-
mit treason, yet that is not enough, if the oath
itself do not bind to that effect. Now, that
oamot be inferred from the words of the oath ;
for if you interpret them fairly, thev mean
nothing but what i% or at least may be, per
feetly innocent

But then, peihaps, vre shall be told that the
public prosecutor vrill prove, by facts and dr-
cumstanees, that the intendment of the oath is
dillhrsat from the purport; and it occurred to
me, that he has some such idea> from tlie dr-
cumstance that he has dravm the narrative of
his minor proposition in the way in which he
has. I have various objections to this view of
the subject, to which I must call your parti-
cular attention.

in the Arst plaOe yon will observe, that in
the libel itself the prosecutor gives up the
diar^ of M/aid^g, and relies on that of ovr-
portmg altogether ; for in the clotw of the libel
(where, though the same detail is not necessary,
yet the efine must be set forth with the same
criticd accuracy) he says, '*At least, times and
pllices foresaid, the said oath or engagement^
or an oa^ or engagement to the eame purport^

1681

57 GEORGE IIL

TriiU of WUiiam Edgar

was- wickedly^ mBlickNuily, and trntofoarij
admimsieredy or caused to be adnunistered/'
<cc. He does not say it was an oath to .the
aanoe intent; and Iherefovai unleas he esta-
blishes that an oath of this purport was admi<-
nistetedy he does nothing at all. But this is
not the objection on mrhich I chiefly rely.

It is an established principle in the law of
Scotland, that the minor proposition shall be
laid specifically^ and that every materiid cir-
cumstance shall there be stated which is to be
made the subject of proof against the pri-
soner. The prosecutor is not at liberty to
make out the intendment of this oath m>m
fects^and circumstances to which he only
alludes, in a vague manner ; the libel is defec-
tive unkss these facts and circmnstances are
distinctly specified. Would it be sufficient in
an indictment under this statute to say, that
the prisoner, at the times and places mentionedi
administered the oath of allegiance, but under
cover of that oath he intended to bind the
party to commit certain crimes ? No. It
would be necessary for the prosecutor to set
forth what were the focts and circumstances
which established the criminal quality. In a
trial for a calumnious or seditious libel« would
it be enough to specify that the prisoner re;-
peated the first stanza of Chevy Chase, without
specifying bow it happened that words having
a natural, obvious, and innocent meaning,
were in reality directed to a totally different
and criminal object? The prosecutor must
set forth the facts and circumstances from
which he draws his inference, otherwise the
indictment is not laid with that minuteness
which the law requires. But your lordships
win observe, that no fact is here specified
from which such an inference can be deduced.
It is stated in the narrative, that the prisoner
''having wickedly, maliciously, and traitor-
ously conspired and agreed with other evil
disposed persons to break and dbturb the
public peace, to change, subvert, and over-
throw tne government, and to excite, move,
and raise insurrection and rebellion, and espe-
cially to hold and attend secret meetings^ for
the purpose of obtaining annual Parliaments
and universal suffrage, did then and there
wickedly, maliciously, and traitorously admi-
nister, or cause to be administered, or did
aid and assist in 4he administering, to a great
number of persons, an oath or engagement,
or an obligation in the form of an oadi,'' &c.
In the first place I say, that supposing the
prisoner committed all these crimes, it is no
necessary inference from that hypothesis that
be intended to administer an umawful oath.
Thev do not create the smallest presumption
to that effect ; for a man may be engaged in
treason himself, and yet have no intention to
impose an oath binding his associate to commit
treason.

But there is another view of the case. Sup-
posing it competent from facts and circum-
stances to prove that an oath which does not
purport any obligation of the nature libelled,

(164

was nevertheless intendad by the parties to
impose that obligation, yet. the tacjts an4
ciicumstanoes hero resorted to are of a kind
which precludes the prosecutor from making
use of them for that purpose. . If the nana*
tive of this indictment were to be proved, it
would infer that the prisoner had commilied
treason; but. will your lordshfps permit the
lord advocate to prove that a. man has been
guilty of treason in order to convict him of
a felony. I submit that this is manifestly in-
competent. It is a general role in criminal
law, and ia so laid down by Mr. Bumet in his
work upon that subject (p. 611). His lath
canon u})on evidence is in these wocds:
"One cnme cannot be proved by evid«n^ as
to another. | If A be charged with three .acts
of theft, a proof of tvro of them cannot be
offered in evidence of his guilt as to the
third.'' Your lordships will see at once the
principle upon whi^h this rule is founded, and
indeea it is afterwards stated by the learned
author whom I have just quoted. He say^
^Mt is to avoid the risk of a jury being influ-
enced by the proof of one crime in judging of
the proof of another." It would be most £m*
gerous to the subjects of this country were it
held, that because a man had perpetrated one
crime of which he was not accused, the jury
might conclude that he had perpetrated ano*
ther of which he was accused. This may
perhaps be a moral, but it is no legal ground
of interence. If I know that my servant has
stolen an article from me on one day, 'and if
another is missed the day following, I ^ may
very naturally conclude that he who stole the
first stole the second also. But if the servant
was tried for the second theft aloncr your
lordships assuredly would not allow the pra^*
secutor to go into evidence of the first. It
could answer no purpose, but the improper
purpose of creating a pr^udica in the mind
of the jury. It is therefore a salutary and
expedient rule, and a rule which I trust will
always be receiv^, that one crime cannot be
proved in order to establish another. As the
prisoner therefore is charged with having ad«
ministered an unlawful oath, and as for that
crime and for no other a conviction is de-
manded, the prosecutor cannot be allowed to
prove in. support of that charge, that he cgm-
mitted another crime, namely that of treason.
Nothing could be more unmir or more con-
trary to the principles of criminal law.

Inaccurate opinions have sometimes been
received on this subject. I have used the ar-«
gument myself, that every thing is evidence
which tends to produce belief in the minds of
the jury. That is not the law of Scotland or
of any civilised 'country. The law judges
what should be allowed to produce belief in
the jury, and, for the reasons which have just
been assigned, it will not allow evidence of
one crime to be used as evidence of another.
Though the prisoner was convicted of being a
traitor, the highest crime which can be com-
mitted in any state, that circumstance could

jesi

Jor AdmbmUrtHg uiiiawfkt Oaths.

A. D. I&17.

Ll6d

not hm penutted to have the towdlest influ-
ence in convicting him of a lesser ' offence
not supported by evidence applicable to itself.

There is another leason why the narratiTe of
die minor proposition cannot be competently
sent to proof, k is there stated that* the pri-
soner vras engaged in a treasonable conspiracy,
hot it is not stated with whom he was engaged
in that oODspiracy. Nay, it is not sUted that
the other conspiiators were persons to the pro«
secQtor unknown* Even upon the suppositiooi
therelbrey liiat this charge nad been laid in the
major, vriiich it is not, it could not be sent to
proo^ because the prosecutor has not given that
nfecmstion with regard to it, which according
to the forms of die law of Scotland he was bound
lo give, that the prisoner might be enabled to
prepare his defcnace. Where a conspiracy is
chaiged against an individual, the other persons
€onspirii% 'most be specified, or at least it
most be stated^ that those persons are unknovm
to dw prosecutor; if eren that is sufficient.

If that remark is applicable to the charge of
coDSptTUcy, how mucn more so is it to that of
treason T To oonvict.a person of treason, many
requisites most occur which are not found here.
No man can be put upon trial for that crime
unless a bill is found against him by a Grand
jury ; and after the bill is foond, man^ forms
must be observed unknown to the criminal law
of Scotland in other cases. For example, the
prisoner is entitled to challenge a certain num*
ber of his jury peremptorily, and without cause
Aevm. He has various other privileges unne*
cessaryie be' stated. - But none of these pri-
vileges have been allowed to the prisoner here,
because he is put upon bis trial for a felony. It
is impossible that your Lordships will allovr
lum to be tried for treason by our forms of
procedure, when it is enacted, by special
statute^ that treason can only be tried by the
IbrmS of the law of £ngland.

It is no answer to this argument, for the pro-
secutor to say, we are going to try the prisoner
for treason, bat we are not to punish him for
treason. We'Ssk for no other punishment but
that which is applicable to the crime laid in the
mgor propositMu of the indictment. If the ju-
ry find the prisoner guilty of treason, though
lie escape the punishment, his character is blast-
ed, be is a convicted traitor, and he suffers an
injury vrfaich the prosecutor is not entitled to
inflict. On the other hand, suppose him to be
acquitted under this indictment, the acquittal
is of no* benefit to him, for not only might his
diaracter be ruined, but he may be again
btoufht to trial for treason in a regular way.

I4>rd Advocate, — ^He cannot be again brought
totiial*

Mr. €>fmn$tam. — ^The lord advocate thinks
diflbentiv from me^ but be is wrong. ' If the
pfisoiier be acquitted of administering the un-
lawful oalh, that act cannot be laid as an overt
act of tseaeott in an indictment for that crime.
Bsi^'ltefie tnasbnable practices are stated for
dir{Pttrpofe4>f prons^^that the oath admini-

stered imposed an obligation to commit treason.
Now the 'lord advocate cannot be prevented
from trying the prisoner for thesie practices as
treason, dthough the prisoner shouM be ac-
quitted of the present charge. The words of
die act are '^rronded also, and it is hereby
declared, that any person who shall be tried
and acquitted, or convicted of any offence
against this act, shall not be liable to be indict-
ed, prosecuted, or tried again for the $ame offence
or fid as hig^ treason or misprision of high trea-
son."

From these words it appears, that after a
trial on this indictment die prisoner cannot be
tried for treason on the ground of having admi-
nistered this oath, but 1^ may notwithstanding
be tried for treason on account of any one of
the acts which his lordship narrates in the mi-
nor proposition, as evidence that the prisoner
and nis associates were engaged in treasonable
practices.

This being the case, what would be the result
of a trial under this indictment, supposing
that the prisoner is acquitted P It would be
just a precognition, and'what is more, a public
precognition taken, for the purpose of convict-
ing him afterwards of high treason. And as
he might be tried twenty times for administer-
ing unlawful oaths, all these trials might be
vrith no other view than that of trying lum for
hi^ treason at last. I put it to your lord-
ships,^ if o'ppression of this kind could be
endured in this country,— if there would not be
an end of all liberty and all security?

I lay it downltherefore as dear law, that one
crime cannot be used as proof of another.
There is nothing set forth in this libel in order
to prove the wtent of the oath as contradistin-
suished from itsptirporl, except facts which in-
fer other crimes, and which, on that account,
cannot be admitted to proof. The whole nar-
rative of the minor proposition must be blotted
out as incompetent, and that being done thera
is notfaingleft but the words of the oath, and these
words do not purport any obligation to commit
treason. The prosecutor may aver the contrary '
— he may say, that whatever may be the appa-
rent purport, thereat intendment was an unlaw-
ful ooUgation : but if he makes this averment
something further is necessary ; he must state
specifically the facts and circumstances by
which he is to prove, that words, innocent ia
themselves, were used with a guilty intent ;
and these fiicts and circumstances must be
relevant to ground that- inference, and com-
petent in themselves to be proved. Further,
as already said, it is not the intention of the
parties, but the intendment of the words which
must be criminal.

But if the nanradve of the minor proposi-
tion be strode out, and I have shovni that it
must be so, then there is no specification of
&cts vvhatever to establish an intendment
different from the purport (^ the oath. What
s^ificadon is necessary in the minor proposi-
tion of a criminal indictment according to the
law of Scodand? AU our authoriUes say that

167]

57 GEORGE III.

Trial of fViitiam Edgar

[168

the minor pnmositioa must set forth a AiU and
accurate detail of all the dicumstances matetial
to the case. But if the lord advocate atten^pts
to extract and elicit from innocent words a
different meaning from that which ^y obvi-
ously bear, and does not specifytbe cutnun-
stances from which he infers that hidden
meaning, then the minor proposition b im-
perfect for want of specification, and the Ubei
u irrelevant.

I had formerly occasion to refer yonr lord**
ships to the practice in trials for perjury : and
it appears to me that there is a great affinity
between trials for that crime, and the present.
Perjury consists in taking an oath which pnr^
ports falsehood : the present eritnie consists in
administering one which purports an unlawful
obligation. In both there is the use of an or-
dinary solemnity, with the criminal intention
in the one case to deceive, and in the other
case to bind to the commission of a crime.
The crimes are analogous. In a caae like the
present, which is new, it is most desirable to
refer to analogous cases, in order to gather
' what are the rvdes of proceeding. Let us con-
sider then what is your proceeding when vou try
a person on a libel lor perjury. Mr. Hume,
in stating what are the specifications necessary
in a libel for peijury, observes, that ** it is
more especially requisite, that in all process
for perjury the prosecutor be not allowed to
lay his libel generally, or in ambiguous tenns;
since otherwise he would take the cognisance
of the relevancy of the charge to himself, out
of the hands of the Court^ to whom of right it
belongs. He has to explain, therefore, wherein
it is that the falsehood lies, and must support
(or as we say, qtu^) his charge with such a
statement of the circumstances of the £&ct, as
justifies his averment of a fidse oath having
been taken, and shall ground a clear inference
(if they be proved) concerning the situation of
the panel's conscience on the occasion." It
thus appears, that in a charge of perjury, in
order to make the libel relevant, it is not
enough to assert that the prisoner has sworn a
false oatlu The prosecutor must point out in
detail the circumstances on which he rests his
averment, that what was sworn is £dse. If that
be the case in a trial for perjury, — in the analo-
gous crime now in question, if the prosecutor
libels words in themselves innocent, he must
specify facts relevant and competent to be
proved, in order to make out the proposition
that these words were used with a guilty in-
tendment— an intendment understood by both
parties. Therefore unless you require a speci-
fication of facts, which I apprehend is essenti-
ally necessary to extract a guilty intendment
from the words of this oath, in themselves in-
nocenlj you depart from one of the best es-
tablished rules of the law of Scotland. What
is said by Mr. Hume as to trials for |>eijury,
is equally applicable to a trial under this act.

I have sJready taken occasion .to observe^
that one of the most vaiuablb statutes in our
code is the statute of Ut Maxy, cap. 1. It is

in our code, for it b a law regaidmg treesoo,
and of consequence introduce along with all
the other laws of England upon that subject
by the 7th Anne, cap. 21. i prsY your lord-
ships to attend to the preamMe of tliat statute
of the 1st Maiy. ** Forasmuch as the state ni
every king, nJer, and governor of any realm,
dominion, or commonalty, standeth and con-
sbteth more assured by the love and frvour of
tiie subjects toward their sovereign ruler and
governor, than in the dread and fear of laws
made with rigorous pains and extreme pnnisb-
ment for not obeying of their sovereign ruler
and governor : And laws also justly made lor
the preservation of the commonweal, without
extreme punbhment or great penalty, are more
often for the most part obeyed and kept, than
laws and statutes made witii great and ex-
treme punishments and in special such lawa
and statutes so made, whereby not only
the ignorant and rude unlearned peofde, bnt
also learned and expert people, mindinK
honesty, are often and many times tnpped and
snared, yea, many times lor words only, with*
out oUier fiict or deed done or perpetrated :
The queen's most excellent majesty, calling to
remembrance, that many, as wdl hononralile
and noble persons as otherof good rep«tation»
within this her grace's realm of England, have
of late (for words only, withovt other opinion,
foot, or deed) suffered shameful death not ao*
customed to nobles ; Her highness, therefore,
of her accustomed clemency and mercy, mind*
ing to avoid and put away die occasion and
cause of like chances hereafter to ensoe, trust-
ing her loving subjects will, for her deniency
to them shewed, love, serve, and obey h^
grace the more heartily and futhfully, than for
dread or fear of pains of body, b contented
and pleased that tne severity 'Of such like ex-
treme, dangerous, and painful laws, shall be
abolished, annulled and made fhistrate and
void." This preamble explains the extreme
danger and mischief arising from laws inflict-
ing the pains of treason on offences whidi are
not accurately defined^ and more particolarij
for words spoken, and accordingly the whole
body of constructive treasons were swept
away by that act.

Now, the statute upon which the present in-
dictment b founded introduced a constructive
felony, on which it inflicts the same punish-
ment as that which is inflicted in treason, at
least in all material respects the same. I did
not read the preamble of the act of queen
Mary, to throw blame on the statute now
under consideration, bnt to show the difficulty
and danger attending the application of every
law of this description, as tne legislature itself
has clearly expressed in that preamble'. But
the statute having been enacted, what b the
proper correcdve for the evib to whidk I
allude f I do not know what b the prac-
tice on the other side the Tweed; tot I
do. not know the detaib of ciisninal pn>-
eedure there, bnt I know that in Scotland
the corrective is to be fbmid iaeur foons of

1691

far AduuKhUriKg taUmfiil Oaths.

A. D. 1617.

iiio

crunnnlpiooedim; and wlatererdefiKti there
may- be in the law of Scotland^ there are aome
exceUcnciefy and one of them is that minnte-
Beaa of ^iceification which the public proeeco-
toris boond to obeerre in his indictment. Hie
nroper piecaation for preventing this statute
Kom being made a source of oppression and
iiyostioe^ is to observe oar forms of criminal
proeedore; and I maintain that one of our best
£mns will be neglected^ if yon allow a proof of
the minor proposition here to go to a juiy^
when there is no specification in the hbel to
show tlwt the wofds ef the oath were nsed in
n sense different from their ordioary sense.
Their ordiniT sense as I have endeavoured to
prove, or rather as I think must be manifest
aft first sight, is perfectly innocent ; at least it
is not an obligation to comnut treason. If this
libel be allowed to go to trial under other '
jndgesy the administration oi any oath* of the
oath of allegiance itself might be made the
mund of a prosecution under this statute.
Tbe author whom I have already bad occasion
to qnoce, says, that the nile of the minor pro-
position containing a specification of all the
nets on which the charge rests, was at-
tended to anziooslyy even in the worst times.
We know well whai are the times to which he
anodes, indeed they are pointed out by the
defisinns to which he refers ; namely, the pe-
riod between 1679 and 1668, when your books
of adioamal are stained with tbe most atroci*
one murders perpetrated under the colosorof
law-^y judges the most unprincipled that
ever sat upon that bench. If in that period,
and jnndet these judges, the rule in question
was not departed from even in the trial of
slate criuMM^ it will not be departed from
in these liberal and enligfatenea days, and
while -yonr lordships preside in tliia Court.
On these grounds, I relate to your lord-
ships with confidedce what is the genuine
eoBvictJon of my own mind, that this is not a
relevant indictment, and that if it be sent to a
jury, a precedent will be established fraught
with the greatest danger,

[Mr. Cranstoun made an apology for occu-
pying the Court so long.]

Lord Justice Clerk. — ^I express the opinion
of the Court, that there Is no reason for such
an apology. We have all heard the very able,
eloquent, and argumentative pleading for the
panel, with the most perfect satisfaction.

. Mr. Dtmumnd. — ^A very difficult task has
devolved itself upon me^ thiat of answering one
of the ablest arguments which I ever had oc-
casion to hear ; and I have this impression
so stronglv on m^ mind, that unless I had
some- confidence m the merits of the cause
whidh I am to support, I should feel the
greatest diffidence in attempting to answer the
speech of the learned gentleman. I trust,
however, that the ease will- speak pretty
Strongly for itself; and my learned friend who-
i#.io foitow me, will, aaich More ably than I

can do, supply what I may happen to omit.

The charge against the panel at the bar is
for a statutory offence. He is charged with
administering an oath of a particular descrip-
tion. The rules of law are clear with regard
to the manner of describing a criminal act. The
words of Mr. Hume are, ** That a libel is not
good, unless it give such an account of the
criminal deed as may distinguish this particu-
lar charge from all other instances of the same
sort of crime, and thus briuff the panel tb the
bar sufficiently informed of that whereof he is
accused.^

If this description of the duty of the prose-
cutor be correct, I apprehend this indictment
must dearly ffo to trial; for it sets forUi the
crime charged in a manner to distinguish it
from ev«ry other instance of the same sort of
crime. 'Die criminal deed is the administer-
ing ef the oath, and the oath itself is set forth
in the indictment. £ven if it had not been in
the power of the prosecutor to obtain the terms
of the oath, yet, by this statute, it was compe-
tent to him to charge its purport. But the
prosecutor has fortunately had more in his
power, for he has obtained the oath itself, and
he has recited it at length in the indictmeqt.

Mr. Hume proceeds afterwards to describe
the manner in which the criminal deed should
be set forth ; and as the learned gentleman
who went before me dwelt some time on this
subject, I shall be under the necessity of

Suoting at length Jdr. Hume's views of the
uty of the prosecutor. {Mr. Drummond here
read from vol. 3, j[). 325, and subsequent pas-
sages, and maintained that the description of
the offence in this indictment was sufficiently
specific]

I apprehend that the prosecutor is correct
as to the times and places, and the individuals
to whom the oath was administered, as no ob-
jection has been stated to the indictment with
regard to these points. And, considering the
particular character of this crime charged, and
that it is of a secret nature, and extremely
difficult to detect, I think your lordships must
be satisfied, that the prosecutor has given aa
foil and particular a description of it as the
panel could expect.

This is a crime, in many respects, of a yery
peculiar character. It is necessary, indeed,
as was correctly stated by the learned gentle-
roan, that the oath itself should bind to the
commission of treason, or of some capital
felony. It is not sufficient that the party ad-
n^inistering the oath, or the party taking it,
should have treasonable, or other criminal in-
tentions ; but it is necessary that the oath itself
should b4nd to the commission of treason, or
some other crime. This was most correctly laid
down by the learned genQeman, and any infer-
ence which the prosecutor may think himself en-
titled to draw from the oath willnotbe sufficient,
i£it do not clearly appear that the oath itself is
of the precise purport necessary to inculpate the

* 3 Comm. 310^

171 j 27 GEORGE III.

nanel on the lUttute' fouiKled upon in th^ iih'
dictment. On this pari of die cate I am ready
lo meet the learned eentleman ; for it appean
to me very clearly tnat this oath does contain
an obligation to commit treason, and that,
upon a rair construction of it, no man of good
tense can firil to be' of this opinion. The oath
fliysy ** I win penefere' in my endeavours to
obtain for all the people in Ciieat Britain and
Ireland, not disqualified by crimes or insanity,
the elective franchise, at the age of twenty-one,
with free and equal representation and annual
pariiaments; and that X ^Q support the same
to the utmost of my power either by moral or

Sysical strength, as the case may require.''
le learned gentlem'an stated, that the oath
binds the person ' taking it to support the en-
deavours made to obtam annual parliaments
and universal suffrage, and he stated so cor-
rectly. He observe«i tiiat the oeih could not
bind them to support what was not in exist-
ence, and that therefore it was to obtain, not
lo support, annual parliaments and universal
suffrage, things not in existence, that the
oath had been administered and taken. It re-
mains for you to consider, whether the oath to
support with moral and physical strength
endeavours made to obtain annual parfia-
ments and universal sufVaaiB, is an oath which
eobjeets those administering or taking it to
the charge of administering or taking an
oath purporting to bind those taking the same
to commit treason ? and upon that narrowed'
construction of the oath I join issue with the
opposite counsel.

It was said verjr ingeniously, that physical
strength may be mnocently employed m many'
wavs for the support of endeavours to obtain
vnhrersal suffrage and annual parliaments^-
that it may be employed in the erecting of
hustings for meetings to petition parliament on
the sulnect-— that it may oe employed in run-
ning about and soliciting members of the
legislature to give their support to such peti*
lions. These are certainly exercises of physi-
cal strength, but not of the kind referred to in
the oath. The oath binds the persons taking
it to use aU their i^jsical strength, as the case
may require. The instances which have been
mentioned of the application of physical
strength are not the only ways in which physical
strength may be employed in order to obtain the
objects spoken of; yet, by the terms of the oath,
there is no limitation as to the kind of physical
strength which the parties were to use. • Tliey
were to use the whole of their moral and
physical strength; and the terms force and
strength have beretlie same meaning. If an
innocent purpose only had been in the view
of these persons, then why were they anxious
for concealment ? — What follows in the oath ?
** And I do further swear, that neither hopes,
fears, rewards, or punishments, diall induce
me to inform on, or give evidence against,
anv member or members, collectively or indi-
viaually, for any act or expression done or
nude, in or out^ in (his or -similar societies.

Trial of fVWmmEJgar

cna

under the punishment of death, to be inflicted*
on me by any member or members of such
societies. So help me God, and keep me
stedfest.*' This is a remarkable part of the
oath, and surely such concealment was not
necessary in erecting hustings, or doing aAy
of the things which were suggested by_tbe
learned counsel in his illustrations. There
can be no use for such concealment, where
lawful means are to be employed for the attain-
ment of lawful objects. Every person vrfao
reads the oath must see that it proves in the
strongest manner, that illegal objects were in
ti)e view of the parties. This is obvious, with-
out travelling beyond the four comers of the
oath itseUl It is so obvious, that no argument
can prevent the indictment from going to trial.
The oath alone, without going to any other
article of evidence, is directly crimtoal, and
implies that the purpose for which the meeting
was assembled was an illegal purpose, and the
association ah illegal association.

It was said by Uie learned gentleman, that
the word '< force*' had been ^ artfiiify*' subeti-
luted in the indictment for the word **• strength.*^
Bnt according to my construction, they have
no different meanin^-<-they are synonymous.-
But I may answer his statement bv a' remark
of his own which is well founded, that any
inference from the oath adjected in the indict-
ment does not signify, unless the oath itself
neeemarily imply that inference. The artifice,
therefore, if there bad been any (and there
was assuredly none), could have no effect, as
your lordships are to judge of the oath itself,
and not of the oondusionsHlrawn from it by
the prosecutor.

It is also libelled in the indictment (and to
the proof of that no objection has been stated),
that this oath was administered at secret meet-
ings. To a proof of this averment, no object
tion has or can be made ; and if it shall be
proved that this oath was administered at a
secret meeting, this is an additional circum-
stance of evidence whidi must go to the assise,
to show that the purpose of the oath' was
illegal and criminal. That the oath was ad-
ministered at a secret meeting is charged, I
observe, with regard to the meeting first
libelled on in the indictment.

It is argued, that the narrative of the indict-
mentr— the general statement of treasonable
conduct which precedes the statement of the
particulars founded on^is not relevant to be
proved. I apprehend, however, that many
examples mint be given from the daily prac-
tice of the uourt'of such narratives as this
going to a jury. One example that occurs to
me--H(I am sorry that I am under the necessity
of speaking from memory alone, as I am cer-
tain that it I ' had had timeto make an investi-
gation, I could have produced many examples
on the point)— an example, I say, occurs to
me,* which is probably in your recoHection.
The cise I allude to vras that of a charge for
uttering ^rged notes. The forgery bad been
committed ia Englebd ;-^that qrifli^ therefoie.

173 J

Jar Aimimleri»g vAt^ OaOs.

A. D. 1817.

1174

tbe Court had no joiisdlction to tiy. Yet yon
tilmitted the statement of the forgery in the
narrative of the indictment m modam proialiom$
oCthe dine. of uttering the forged notes in
Scotland, and as relevant to infer the know-
ledge of the forgery in the ntterer. This is
setUad lair; and the oath here charged is at
least as intimately connected with the . state-
ment of treasonable practices mentioned in the
narrattye^ as the crime of nttering forged notes
was with the perpetration of the forgery! I
am not going too far in saying that the oath
is nothing ebe than an OTert act of a general
treasrmable conspiracy, opt now charged
against the parties. The whole import and
constraction of the present charge^ indeed, in-
volves the existence of another crime. The
administration of the oath is a criminal act,
binding the takers to ciu9»iC .aoptl^ar cdme ;
and how is it possible to separate, the two?
How can any circomstanceii regarding the one
be eKplained without mentioning the other P
We are bound to show that there was treason
which would have been speedily matured, if
the purposes of the persons who administmd
and who took the oath had been carried into
effect. We are to prove what they were
hatdiiiig— what they intended— nand it is im-
possible to lay out of .view the preparations
they were making for. committing treason, in
^caking, of what they bound themselves to
aocompUsh. Thus the rule of not admitting
proof of one crime in evidence of another,
must be received with some qualification, .and
it btf always been so in practice. [Mr . Drum-
nond here referred to Hume's Com. vol. 3.
p. 411, and. to the case of Thomas Somerville,
who ^as tried for perjury in 1813, as men-
tioned in the corresponding part of the supple-
ment, p. 2^6.] There, you have (evidence of
one crime admitted to.prove another, although
the one was quite different from. Uie other.
But here the crimes are intimately and almoet
ittseinrably connected. It is an established
rale in the English law books, in cases of trea-
son, not only that one overt act not laid as a
charge, may be adduced as proof of one that
is laid, but that a general proof of rebellion or
conspiracy is allowed before proceeding to the
particular acts charged ; and the well known
case of Strafford* was quoted and received as
an authority on this point in the trials of Wattf
and Downle,t — ^in which the existence of a
treasonable plot was allowed to be proved be-
fore the overt acts charged. Hie principal
3uestion is, whether, the matter offered in evi-
ence.be pertinent to the point in issue f
It was said that we are not entitled to try
a. man for treason in this form, and that there-
fore we cannot indirectly try the treason as
pioo(oCaift>ther crime. * I appeal, in answer
to this,- to the act of parlian^nt under which
we are now proceeding. The whole act, and

< »■

♦ 3 How. St. Tr. 1381.

t 2 How. Mod. St. Tr. 1167.

I 8How. Mod. StTr. 1.

particttlaily the last daose,. piooteds on the
understanaing that we are entitled to go on as
we are doing in this trial, althoogh the crime
tried be treason. . <

^ Provided also^ and it is hereby dedared,
that any person who shall be tried and ao-
quitted, or convicted of any offence against
tfiis act, shall not be • liable to be indicted
prosecuted, or tried again for. the same offence
or fact, as high treason, or , misprision of high
treason ; and that nothing in this act contained
i shall be construed to extend to prohibit any
' person guilty of any offence against this act,
and who shall not be tried for tiie same as an
offence against this act, from being tried for
the same as high treason, or misprision of high
treason, in sudi manner as if this act had not
beeu ntadeh"

Even iflhiseet had aever existad, I shonid
have been prepared to maintain, on the or-
dinary rule^ of law, the competency of trying
under a lower denomination of crime : what
might have been tried as treason but the dause
now quoted is quite conclusive. There is,
therefore, nothing in the ciroumstanoe that the
criminal proceedings set forth in the- iiarrative
of the indictment happen to be of a treasonable
nature, that can make any difference in the
case ; and I submit, that as they form part of
the res gata at the time of administering the
oath, and, naturally enter into the history of
the transaction, they ought to be admitted to

{>roof, and found relevant with the rest of the
ibel. The^ are intimately and inseparablT
coi^iected with the proof of the crime cnar|;ed,
and afford the clearest and most relevant mii»
da than can be imagined of the guilty purpose
of the panel. It seems unnecessary to add
that if it be relevant to introduce this statement
narraiivif the same specification is not requisite
as if it had been made the "subject of a sub-
stantive charge ; and I should not have made
this remark at all, unless there had appeared a
disposition to argue upon this narrative, as if
the relevancy of it were to be tried by the
same rules as a charge in the indictment. . .
It was said by the learned gentleman, that,
the particulars charged as what the parties
bound themselves to commit, would not have
amounted to high treason even if they had
been carried into effect. But how it can be
maintained that the employment of force to
accomplish public measures of this description
is not treason, I cannot conceive. It appears
to me to be beyond the ingenuity of even the
learned gentleman himself, to persuade any
person, that, a public measure of any sort may
DO accomplished, not to say the fundamental
principles of the constitution subverted by
force, by a number of persons conspiring to«
getherfor that purpose without levying war
agaist the king. According to my view of.
the law, I might have been entitled to charge
the administration of the oath itself as h«h^
treason. The wor^s.of the statute 36 G. ifl^
c. 7. seem completely in point, as tq the trea-;
sonable nature of the association and the oath..

174]

57 GEORGE III.

Trial of WaUam E^ar

1176

^ tf asy person or penonn, fcc. shall obmpttsSy
, imagine, meat, dernse, or intend deam or
destraottbnj^ See. kc* or to deprive or depose
him, &c. or to levy war against his Majestj,
in order, by force or constraint, to compel him
to change his measures or counsels, or in order
fo put any force or constraint upon, or to in-
timidate or overawe both Houses, or either
House of Pariiament-«--4UDd suoh compas*
sings, imaginations, tnTentions, devices or in^
tentions, or any of them shall express, titter, or
declare, by publishing any printmg or wnting,
or by any overt' act or deed^"- £vea under
the first head of the statute of Sdward III.
it might have been maintained to be treason
to conspire for the <cttainment of universal
anffirage and annual Parliaments by foroe; and
the oath and secret meeting might have been
given in evidence as overt acts.

But it is unnecessary to enter upon the
question, whether the acts libelled as having
been done, might have justified a charge of
treason. It is «iough for the present purpose
to say, that if the force which the parties bound
themselves bj this oath to use, for obtaining
annual parliaments and universal suflVage, had
been actually employed for those purposes
. (which are not only of a public nature, but
utterly subversive of the whole frame of the
constitution) this would clearly have been that
species of treason which consists in levying
war against the king.

It vras said, that the coneluding part of the
indictment does not correspond with what
goes before, as the charge of intending is omit-
ted, and that of purporting only relied upon.
It is .true, that the prosecutor relies completely
on the charge of purportmgy because the pur-

Eort and open meaning of the oath is so clear ;
ut the proper answer to this critical objection
is, that it is quite unnecessary and unusual to
repeat in this part of an indictment the whole
expressions previously used, as it sdways bears
such a reference to what goes before, as to
point the attention to the preceding description
as that which' is here spoken of. Thus, ^' Times
and placesybreaauj the said oath or engage-
ment,'' &c. This is the usual style, and it is
not customary to repeat all the preceding
epithets and qualifications which are included
and held repeated by the reference to what
goes before.

I am sensible that there are many things
which I have omitted, but I will not detain
your lordships longer.

Mr. SoUcUof General. — In concluding the
debate on the part of the crown, I must be
pardoned for observing in behalf of the prose-
cutor, that nothing is or can be more remote
from his intention, than to introduce into the
law of the land any of those constructive
treasons tp which reference was made by my
learned friend at the commencement of his
speech for the panel. Nothing can be more
remote from the intention of the public pro-
secutor in Scotland at any period. And if
such a profligate design existea, it would meet

with a sure and signal defeat from the ind^
pendence of the bar,^and firaim the vigour and
integrt^ of the court.

The present prosecution does not involve
any eharge of constructive treason. It is
founded upon a statute of recent introduction ;
a statute quite plain and explicit; a statute
which, very unfortunately for tne country, the
late comiption of the public mind and of ^e
moral habits of some part of the population
has rendered necessary for the protection of
the state.

In answering the argument nudntained for
the panel, I must take leave to recai to your
lordships' notice two of the species of treaeoov
which were not introduced, but vrell definedv
by the statute of £dward III. These two
species of treason are,— ^irtf. Compassing the
death of the king^ fe60iu%, Levying war
against the king.

Your lordships are all aware, that by dedar^
ing and defining the first species of treason,
the legislature Stowed upon a mental act —
upon the imagining, or compassing ip the
mind, the death of die king— the character of
a completed crime, punishable by a luj^ sane*
tion ; and it provided, that in the case of this
highest offence against the state, mere intMH
tion (which in other -cases is not cognizable by
the criminal tribunals to that effect) shoiM
held the same rank in the scale of guilt kmi.
of punishment with a completed act. It rein
dered the compassing or imagining^ Uiemere
conception or design of destroying the king^
punimable with the pains of treason. There
IS a remarkable distinction, therefore, between
this class of erimee and all others. It may be
said generally, almost without exception, that
the mere compassing of any other -act, the
mere compassing of murder, for- instance, the
criminally imagpining suoh a deed is not a
cognizable crime, at least is not cogniiable as
the crime of murder. But in this department
of the law the ease is different. The imagi-
nation of the king's death is the statutory
crime> and nothing more is required than an
overt act, by which this imagining is infened
or proved.

As to the next species of treason^ that of
levying war against the king, I do not mean
to give an opinion upon die question, whether
the mere imagining of it, as proved by the
administering or taking an oath, or by any
thing short of the total or partial execution of
the act of levying war, would be held to foil
under the statute. I am not here called upon
to offer any opinion on sneh a question. But
you wilt see by and by the reason why T
have ealled jc^t attention to the drcomslancea
which have now been stated.

On die supposidoa, that by the former and
existing law it was donbtfiil whether in the
geneml case the mere intentio% or imagining;
or compassing to commit any treason, when
not reauced' into action, is in itself treason,
the statute of the 52d of the king was intro-
duced, the object of which was, to bring the

Jbr Aimmideriiig mlm^ Oaikt.

«7Y)

frfftifffr €f committiiig treasoD, when so &r
matuTed as to be reoaeied obligatory hy an
oath, into tlie class d crimes pooishabk
with death. Bjr tbe previefiis law, it might
perhaps be donbttiil tihether such criminal in-
tention could in oertata cases infer a capital
fNuishaient. Bot when the intention is ap-
piozimated to esecotion by an oath, and is
manifested by snch as overt act, when it is
accompanied by an oath, to commit and con-
ceal it, tiie legislature has enacted that it shall
be pfinished as a capital crime. That the act
described so distinctly in the statute is a
iiigb dfence, an ofenoe from which the great-
caa>danger to the public may be apprehended',
and by -which the deepest depravity of heart
in the perpetiator is proved, no man will
▼entnre to aispute. I can see no reason why
the highest sanction should not be affixed

4. 0; xm-

well as its i^^plication to the picvtotts law, and
its necessity m the drcumstsACM and chancte?
of the countiy, on which I have insistei^, to be
correct, J solicit your attention to the first, and,
in my mind, by far the most important objeo*
tion Uiat has been made, as to the mode in
.which the libel is laid. That ob|ection con-
sists of two points in law, as I understand it
In the firit place, that the oath taken does not,
upon a fidr construction of it, amount to the
oflenoe stated in the major proposition ; or, in
other words,' to the statutoir offence. And
thett, supposing it did, it is alleged, secondly^
that in the indictment there is a vrant of
specification of circumstances, and detail of the
manner in which the intended treason was to
be committed.

I call your attention, in the jirs< place, to the
terms of the oath, for I have no hesitation

hich are used. '^That every person
who shall, in any manner or form wluitsoever,
adviaister or cause to be administered, or be
aiding or assisting at the administering of any
oath or engagement, purporting or inteodiiig
to bind the person taking the same to commit
aay treason, or nraider, or any felony punish-
able br law with death, shall, on eonvictioo
thereof by due course of law, be adjudged
guilty of fiilony, and Mbr death as a felon,
without benefit of deigy.*' It is plain, in
looking to tbe terms of the statute, that it did
notcoi^eniplatean ad uriiich has been done^ but
one wlucfa is to be done ; which exists only in
intention, bnt which, at the same time, exists
in a amtnred intention; an intention passing
froB the heart of one man to the heart of
anodier, and attended by the obligation of an
oadi te the eonoealment and accomplishment
ef the jBu^ined crime. And sure I am, that
it iaimpoenhle for aoy<one taking this view of it
not to be of opinion, that the act defined is not
BMrely a statutory crime, but must be feU and
eeafaMed to.be a crime by the common sense
aadimiversal feelingsof dvilixed man. At all
tiaMsand in afi pUiMs it is a crime, and in no
plaeeor comtrj is it more criminal than in
Holland, utere there exists, in many districts of
it at leasts a religious feeling amountiag-almost
to fanaticism ; and .where a union of political
and laligSons pasaions mast create in tha vul-
gar mfaid a darker, and more atrodous cha-

tlie commission of it. I submit that all this is I in sa^ng, thai if this oath do not of itself, and
as dear as the sun, and that neither the ; in fair and honest construction, amount to the
legishaure nor the public pfo^cutor can be ' crime laid in the major proposition, there i$ no
barged with any design of introducing coo- ! case before you. For I have no intention (I
atractive treason, by* demanding the ioflietion I disclaim it, and no one can with truth impute
of a capital puidshment on such a crime. | it) to press a severe or harsh construction of

Taking that view of theobjects and purposes ! the oath. The terms of this oath have been
of the statnte, and considering it with refer- ; often read to you, and, however disagreeable
to the prindples and system of the law i it mav be to repeat that which you have so often

heard, the importance of the case must be m]^
apology for again readiug its words and sub«
(offdships wiU be f^eased^to attend to the | jecting it to a critical examination. .

I may here state, that in construing the oath
there can be little room for difference of opinion
as to theprittcipleon which you ought to proceed.
I am willing to admit, that the panel .at the bar
is not to be ensnared hj any subtle, recondite^
and remote iaterpretation of the oath, by any
interpretation different from that which an or-
dinary man would put upon it, on reading it
from beginning to end. But I maintain with
equal confidence, that the panel cannot escape
from the law, and the public safety is not to
be eikdangered, by a construotioii in his favour,
which is recondite or subtle«-4y an interpr^
tation of the oath, which it plainly could not bear
in his own mind, and which plainly he knew it
did not bear in the minds of those to whom it
was administered. Between these two ex«
tremes, it is your peculiar province to strike
out the middle .course, and to adopt that just
and rational interpretation which will not only
command tihe acquiescence, but the approb%*
tion of the public prosecutor. *

What does the oath sayP ^^In the awful
presence of God, I, A B, do voluntarily swear
that I will persevere in my endeavouring to
form a brotheriiood of affection amongst
Britons of every description, who are consi-
dered worthy oi confidence." I concur with
my learned friend in sayino^ that this part of
the oath, if taken by itsdl^ is perfectly inno-
cent The oath goes on, ** And that I wi|l
penevere in my endeavours > to obtain for all
Ifhe people in Oreat Britain and Irdand, not
Holdiaff, as I do, with a confidence not in- disquulified by crimes or insani^, the electiva
ferior.to vuki whidi has bean expressed on the franchise, at the age of twenty-one, with free
dde^ the inteimuliQnof the statute, as and equal lenresantalioDi and annuel parlis*

VOL. xxzm. N

1791 57 GEORGE IIL

^Tud tf WiUum E^r

C180

nents ; and that I will«8upport the tame to tlie
utmost of my power, either hj moral or
physical strength, as the case may require:
And I do further swear, that neithtr hopes,
fears, rewards, or punishments, shall induce
ine to inform on, or give evidence against, anj
member or members, collectirely or indivi-
dnally, for any act or expression done or made,
in or out, in this or 'similar societies, under the
punishment of death, to be inflicted on me by
any member or members Df such societies. So
help me God, and keep me stediast.*^ Two
questions have been raised on this part of the
oath. The counsel for the panel has main-
tained two propositions. First, Thai the words
** tttpport the mant^^ mean, that the oath-taker
was to support annual parliaments and univer-
sal suffrage, after these mighty improvements
were estiu>lished by I'egular and constitutional
means. And, tecmdy That even if the words
nf^pori Mc same mean, to support the eodea-
voars to obtain these objects, yet the p^/ncal
strength to be used was capable of being used
in a manner not illegal.

On the first point, your lordships hava to
consider what is here uuderstood by the word
seme. What is the antecedent to this pro-
noun ? I submit, there are only two ways of
giving a sound construction of this word. It
must- eitfier apply to the whole of the previous
branch of the sentence, or to a part ot it. If
the first is adopted, and if it be held to embrace
the whole of the previous part of the sentence,
and if the antecedent be considered as thus
extensive, then the construction put upon it
by the other side vnll be destroyed; for if the
word *' same" embraces all tba previous part
x>f tlie sentence, it includes both the use of
physical force in obtaitiing annual parliaments
und universal suffrage, and its employment in
Maintaining these objects after they are accom-
plished. This is a mode of construction so
perfectly fair, that the panels cannot object
to it.

' But this is not the construction which a pe-
rusal of the oath naturally dictates. It is dear
that by it the obligation to accomplish the
wished-for changes by physical strengtii was
contemplated, and that this. was the sole pur-
pose of the oath. I maintain, that taking t^e
whole of the oath together, comprehending the
'obligation to conoeaJment, it is impossible to
consider it without condudinff, not by a remote
and distant cotistruction, but Indirect rational
necessary inference, that the parties had in
thdr minds a criminal accomplishment of their
designs, and the moment criminal intention is
granted tome, it folfows that there can be no
criminal accomplishment of this design, but
flueh as would oe treason. The reasonable,
the ftur constmction, • thai which -obvionsly
mnst have have been in the mind of the giver
aikd taker of the oath, is, that the wvrd same
bad no other application than that wksich I
^bave stated, viz. to bind to the use of phy-
sical strength for the attainment of the'object.
-This is the eorveet| graminatical ooBBtnictum^

pointed out, not only by the juxtaposition of
the vrords, but by the general sense of the whole
passage and of the vriiole* oath ; and it fs im^
possible to put an^ other inteipretation upon
It, without sacrificing the pubuc safety, and
public law to a forced and subtle construction. '
I do not dweti longer on this point, bo-
cause truly it lies in a nut-shell, and if by
merely- stating it, I do not shew that I am in
the right, I despair of doing so by any length
6f argument.

Now, your lordships have to consider^
whether, supposing it were established that the
obligation in the oath is to support endeavours
to obtain annual parliaments and univecsal
suffrage* by physical strength, the act which
was thus meditated, does, li accomplished,
amount to treason. That such purpose woidd,
if accomplished, have constituted treason, is
proved by the concurrent testimony of all law*
yers ancient and modem. The essence of
treason consists* in the application of force
to the accomplishment of an alteration in any
general law. How did tty learned Mend get
out of this dilemma? He maintained ml
physical strength forttie accomplishment of any
diaiMre in the laws of this kingdom, might by
possibility be exercised without committing
treason ; and this he iflustrated by supposing the
case of the Sneaker of Uie House ox Commons
being forced ny threats and violence to consent
to a bill for the abolition of the House of Lords,
or of anv of the branches of the constitution,
which bul having passed the House of Lords,
had its fote dependent on the Speaker's casting
vote. That whimsical case can scarcely be
called a case in illustration ; but if it were
neoessaiy for me to enter into that supposed
case, I would say without hesitation, that here
was treason, not merely under the act of '^e
36th of the king, but under what I may call the
previous common law of the land. Many de-
cisions might be referred to, to establish this.
But I have no occasion to enter upon sudi an
inapplicable question.

The other instanoes of the possible exertions
of physical force in the accomplishment of the
purposes contemplated by the panel and bis
associates are utieriy absurd. It is said, that
physical force may be exerted in the canying
of messages, in the erection of hustings, in die
keeping off the crovrds, and in various other
ways which are all innocent, and whid^ are sJl
Gondaeive to the attainment of the objects in
view. I contend, that in these illustrations
the tounsel for the panel forget or overiook the
distinction between the terms moral said
physical, as employed to characterise humlm
action. When a man delivers an oration, heis
tmdeiBtflod in Ammon language to exercise his
moral power or strength. But my learned
friends must admit, thateome pbyncal force or
strength is also at the same time everted. To
make the penl^th which the poliiioal oaHoria
tovrrite, to carry the bench fromwhieh the
political orator is to deelaim, to keep off ti»e
cr^wd vrith which the poUtidal orator- woald

ISI]

for Atbkitdderiiig unlawful Oalht,

A. D. I8I7.

Il8i»

Otherwise be incominoJedy are all actions sub-
serrient to the moral powers which are to be
exerted. It is impossible to d^ny this without
GonfoQDdin^ the disdnction between the terms
moral and physical. Ko moral power can be
exercised by man without physical exertion^
Ifut when the distinction to whidi I have ad-
verted is reooUectedy the iUnstrationv which
have been offered are either in themf eUes ab-
sard, or are against the argument of the panel,
and most be classed with moral, and not pby*
sical exertiona.

The obligation in the oath is, to employ
moral and phjvical strength, as the case may
Mquire — tlAt is, such moral strength, as the
case may require, and such physicil strength,
as the case may 'require.— It is thus clear, 3iat
tbe terms of the oath do not bear a limitation
to that innocent sort of force by the criminal
example of which the learned counsel illus-
trated his argument. According to the dear
terms of tbe oath, such physical strength was
to be employed as the case might require, for
the accomplishment of the purposes which
bare been mentioned. What, I ask, are we
to understand — what is the le^ inference
from the construction I have given? It is,
that physical strength, «s the exigency might
require^ was to be used for the aocoqtiplish-
ment of a change in the constitution.

It is unnecessary to advert to the extreme
absordity of endeavouring to distinguish be-
tween tlMS meaning of the words sfrev^M and
Jane. They are certainly synonymous terms;
and for the present purpose, at least, no dis-
tinctioD can be stated between them, either in
popular or technical use. It is impossible to
acoompliah the alteration or subversion of
any part of the constitution by physical force,
^thonty in legal acceptation, levying war for
ihat purpose, or compassing the king*s death,
•r bein^ guilty of some oUier treason. ' The
application of numerical physical strength is
nothing else but the levying of war. JBut if
war be levied within the lungdom for any
|(aiiecal purpose, — ^for the purpose of subvert-
ing any of me branches of the constitution, —
th^ war is understpod to be r levied against
the king, who, being the executive, is bound
to protect the other branches of the Legisla*
tare. This is the import of all the antborities,
to some of which' I may now. direct the atten*>
lion of the Court.

The first authority to which I refer is that
tif Bladcstone, who states the law in a brief
and popular form. ^ The third species of treason
n^ ' It a nan do levy war affunst our lord tbe
hug in his realm** And this may be done
bj taking anns^ not only to dethrone the king,
wA aader pretence to reform religion, or the
tows, or to remove, evil counsellors, or other
grievances, whether real er pretended. For,
tbe law does not, neither 4^. it, permit any
private man, or set -of men, to interfere
Miciblyin matteis of such high, importance';
especially as it ^as; eitablished a sufficient
power, loi these purposes, in the bigb court of

Parliament: neither does the constitution
justify any private or particular resistance for
private or particular griefances; though in^
cases of national oppr^ion the nation has'
very justifiably ris^n as one man, to vindicate
the origins^l contract subsisting between the
king and his people." *

Ibe next authoritv to which I refer is that of
£w<er, a book which is daily cited by English
Judges, as an undoubted authority. I quote
from page 211. — "Insurrections in order to
throw down all enclosures, to alter the esta«
blished law, or change religion, to enhance the
price of all labour, or to open all prisons — all
risings, in order to effect these innovations, of
a public and, general concern, by an armed
force are, in construction of law, high treason,
within the clause of levying war ; for though
they are not levelled at the person of the king,
they are against hisjt>yal majesty; and be-
sides, th^ have a direct tendency to dissolve
all the bonds of society, and to destroy all
property, and all government too, by numbers
and an armed force. Insurrections likewise
for redressing national grievances, or for the
expulsipn of foreigners in general, or indeed
of any single nation livins here under the
protection of the king, or tor the reformation
of real or imaginary evils of a public nature,
and in which the insurgents have no special
interest— risings to effect these ends by force
and numbers are, by construction, of law,
within the clause of levying war; for they
are levelled at the kings crown, and royal
dignity."

the only other authority to which I shall^
refer, is that of a Judge, than whom none was
ever more highly or more deservedly honoured
during a long and splendid career. I. quote
from the summing-up of lord Mansfield on
lord George Gordon's trial. — *' There are two
kinds of levying war : — One against the per^^
son of tbe king; to imprison, to dethrone, or
to kill him ; or to knake him change measures
or remove counsellors : — ^llie other, which It
said to be levied against the majesty pf the
king, or, in other words, against him in his
regal capacity ; as when a multitude rise and
assemble to attain by force and violence any
object of a general public nature; that is
levying war against, the majesty of the king ;
and most reasonably so held, because it tend^
to dissolve all the bonds of society, to destroy
property, and to overturn government; and by.
force of arms to restrain the king from reigi>
ing according to law.

^Insurrections, by force and violence, to
raise the 'price of wages, to open all prisons,
to destroy meeting-bouses, nay, to destroy all
brothels, to resist the execution of militia laws,
to throw down all inclosures, to alter the esta-
blished law, or change religion, to redress
grievances real or preiended, have all been
held levying war. Many otiier instances
might be put. Lord Chief Justice lloli, iu

* 4Comm. ai.

gir Jobn Friend's cas«, says, ^^if pevsoin do
assemble themselves, and act witn force in
opposition to some law which they think in*
coDTenient, and ho^ thereby to get it re-
pealed, this is a levying war, and treason." In
the present case, it don't rest npon an impli-
eation that they hoped by opposition to a uiw
to get it repealed, but the prosecotion proceeds
npon the direct ground, tnat the object waiy
by force and violence, to compel the Legis-
lature to repeal a law; imif tAere/bre, witAoitf
fifty doubif lUU you the jomi opinion ofvsaUj
that J if thii mtdmide auembled with intent^ by
ccts y force and violence^ to compel <Ae L^U'
lature to rneal a Imo, it ii high tmmm.

^Tboogn the form of an indictment for
this species of treason mentions drums, trum-
pets, arms, swords, fifos, and guns^ye^ ntme of
ikt$e dramntoRca are etMentiaL The quettion
choeysiMy Whether the intent tt hy farce and vio^
knee to obtain an oljeet of a general andmtbtic
nature by any imtrwnents, or bydmt of their
numbertf Whoever incites, advises, encon-
nget, or is any way aiding to sudi a multitude
so assembled with such intent, though he does
not personally appear an>oog them, or vrith
his own hands commit any violence whatsoever,
yet he is equally a principal with those who
act, and guilty of nigh treason/'* .Many
other authorities to the same effect might be
accumulated. I need not quote Hume, who
«ves a very luminous abstract of all the
English antboritieron the subject, and gives a
summary which, in perspicuity and preci-
sion, is not surpassed by the boasted oracles
df English law.

I say, therefore, on these authorities, it is
utterly impossible to imagine that any change
*in the constitution can be accomplished by
physical strength, without necessarily implying
— not constructively, but necessarily implying
— 4hat it is done by force and violence. Levy-
ing war is nothing more than the application
of an act which is treason. The for&v or mode
of this act may probably be that of levying
war, to overcome or prevent resistance. It
does not consist in having drums, or uniformity
of dress, or the other usual appendages of
warlike pomp. It does not consist in any
particular kind of offensive arms, but in the
application of a powerNk and numerous force;
and it is impossible tl^t strength for the ac-
complishment of any change in die consti-
tution can be applied in any way, so as not to
include the crime of treason, either of levying
war, or of compassing the king's death, or m
treason, under the Stat. 36 G. III. That
which is accomplished by force can only be
dotie iub rpeae oelUf in so fer at those terms
have any intelligible meaning, and the same
quality must characterise that which is in«
tendea mt resolved to be donei I submit,
therefore, that the construction given by die
learned gentleman to the oath is erroneous,-
and that the only sound, the only legal, and

Triai qflViUiam Edgttr

tlM

•«MM«n

• 2t How. St. Tr. 644.

the only obvious eoi)stniction of it, i» that
which I have stated to your lordships.

It iHs contended forther, however, tha^
supposing a treasonable purpose to have ex-
isted, it is still necessary that it should be
proved by and appear in the oath, and in the
oath alone, in oruer to have the Tase braiught
under the statute. If I rightly understood
tiiis plea, two things were maintained, wMch
I own appeared to me to be inconsistent: It
was first maintained, that then is a want of
specification in the indictment as to the mode
in which the treason contemplated.by the oath
was to be effected ; next, it was maintained,
that in this indictment, charging the panda
with administering unlawfM oaths, we are not
entitled to go into any proof of acts of treason
said to have been committed \q them, for that
would be to make the proof of one crime the

Fr9of of the commi^on' of another. These
consider to be inconsistent objections.

Whether the treasonable purpose should ap-
pear in the oath itself, to bring the case witiun
the statute, it is unnecessary to ame, because
in the present case we do not desire to go
beyond the contents of the Oath. But in pas-
sing, I roust deny that this plea for the panel is
sound, or at all warranted by the terms of the
statute.

With respect to the other objections, I must
observe that from the nature of the crime
which the statute hasi defined, you neither can
require, nor can yon eiqiect, in charging it,
a specification of overt acts of treason. Ac-.
Corain^ to the previous argument of the panrt,
the prosecutor is not entitled to prove any acts
of treason, if such had been actually com-
mitted, and herein lies the monstrous incon*
sistency of his present argument. In my view
of the case, tM specification which the mad
thus . alternately opposes and demandt, is
morally impossible.

The charge hero is not for the accomplish-
ment and completion of the crime of treason ;
— the Charge is for the conception, the nia-
gination of treason, sanctioned by an- oath,
and so far by an overt act consisting in the
administration of an oath. When a crime bas
not been actually committed it is impossible
Co state the circumstances of mode, time, aii^
detail of execution. When a crime has been
. committed, it is of course an essential mode of
that criminal act, that it was accompanied by
time, place, and circumstances; and when a

Eanel is brought to the Bar on a diarge of
aving committed a ciim^ the prosecutor can
have no knowledge regarding it without
knovring some of the prominent dreuastances
of its execution. But you must all be aware^
that this rale cannot ap»ply fo what merely
exists in intention. Of intention hete, ytmr
lordships have evidence by the oath, and th«
oafli is such as the statute has made it a
crime, dther to adminfoter or to take.

The crime charged is the adaadniBtetisif an
oath of a certain kind,' and the mode of tbit
aot is admitted to be suflkiently ^kldled. H

1853

Jar AdrnmiiUring UmIm^ Oathi.

A. D. 1817.

IB powble that^wben tlie otth was adnius-
tefedy not cme circmnstiDee was finally ra-
solved upon as to the detail of the ezecation
of tike treaaon ^-it is cpute pooible that no
ooe cncomaunoe nnqr hare b^en fixed on as
to the mode in whidi it was to have been
carried into elfeet ; — and no lesoliitions adopt-
ed as a> the ooune of proceeding to be folkm-
ed fiw the nocompHaoment of the atrocions
imiposea of the parties. Diflerent plans ma^
tare eiiated in the minds of difiierent consp-
lators; — ^therenay have been nnmeioasdttH
pvtea on the anbject :— end therefore^ from the
very naftnre of the statntoiy crim^ it is hn*
poanble that any snch detail as the opposite
yeity raqniin could be given ; and it is enon^
lo any thai the statute has not required it.
The nature of the treaaon which the oath bound
the parties to commit is as much specified as
it is poaaible fi>r the public praaecutor, or for
any human being, to spedfv* He has said,
that the treaaon contemplated waa iiM vdiich
cenaismd in compelling an alteration in the
aataifaliabed laws by force and violence. That
this would be treason^ who can doubt t
Wbethepy in the actual aeoomplislunent of it,
the erimhals would have levied war against
the king, in the sense in which the law uses
dwaetennsy or whether they would have com*
paased or imagined the death of ttie king, or
whether both these legal Crimea would have
been perpetrated in the actual conaammatvM
of dieirpurpeae, whocanpfetend tosay? To
demand, that the public diould divine and
specify the mode in which ^ treason was
•etnaliy'to be perpelmted, isaDsuid andim*
poasibte, because Uie modes ate various. To
deBBsad tfamt he should^spedfy all the modes
m whicii the intended treason ought to be per-
petrated, is plainly unneceasary and uaeMtt*
It ia aofficient fivr him to satisfy your lortehipi^
'that the object contemplated if the oadi could
ftot be aoeompUAed but by means of treason ;
and on tins I have already statod m v argument,
na Ihe w<»d8 of the highest anthontieB of the
Aaw.

Bat it was also rather inconsistently urged,
tfiat if we had stated treason to have been
committed witlTall itactreamataiiceSyWeslMmld
not have been entitled to ofier any proof of
this averment, or to give any detttl of the
teta haai, as the panel is not on hia trial for
high treason; and one otrjeetion to |he indict-
aaant la to thenairative of details widi vriiioh
the Btatotory ofieace is iatrodueed. On lo<dc-
iag into the statute, I think it is hardly neeea*
aaiy togointothuquestiony beeanse itianot
oeeioimre that the commission of o¥cit acts <£
ummm Aotdd be aJleged. I submit tOto^thA
avfaat my leamed iriendy who Hamediately ^liro-
«eded me in behalf of the public praeecutor,
acnted on this put of the sntgect, was agrees
•hie to the law of Scotland, and suffieieiitly
obviates a& that was urged in .the way of ob-
jectien to ttfirpart of th» ease.

IncomlneioaL it ins etrondy and powei^
.ftiB9^«i«fi, o^a hWbhi|i In % «ub oC ibt

paiAL tftet, though acquitud On diis oaaarion.
Be might be afterwards tried for treason. If
he were to be acquitted of this chaige, and
afterwards brouffht to trial ibr treason, I sus-
pect we ehould near ficom his couasel an eflbc-
taal atgument a^nst sodi second tiiaL I
content myself with aaying, that nor view and
interpretatioa of ttie statute it totaUy and abso-
lutely different ftom that of my leeroed friend,
Mr. Cranstonn, and that m eonceivei ftom
the temn of it, it is impossible audi a second
trial could be atteaipted. It is said, in the
last chKise^ '« Ibat any person who shall be
tried, and acquitted or convicted of any offeneo
against this act, sleff not k fittfe lo fte MKiid;
proeeoul0^ or tritd flgwii fbt ths toawcwisMCji
or factf as high treaaon, or misprision of hlgii
treason; and mat nothing in this act eootaiMd
shall be cousfaued or extend to prohibit any
perMm guilty of any offenee against this ne^
and who ahidl not be tried for the same aa aa
offence against this act^ftom being tried for
the same as high treason, or miipriiian of
higfatreaaoui in such manner as if tins aet had
not been made.^

This chutte wae intended to gnrd aganat
two inconveniences. '1st, It waa intended tf
protect the eubject ftom being tried again aa
for tijaaon upon the facts on whieh die ttailtt-
toiy crime shall have been already prosecuted^
In odier words, it would be impoeaude to give
in evidence, in any subsequent trial of this pti*
soner, any of the fi«ts whidi have been Ad-
mitted to proof in the present case, ted. It
was intended to guard apinst the posaih&ty
of the enactments of thn itatute beinff ce»*
strued to afibct the prindples of the nw of
treaaon previously establislied. If, theirefoN!^
the pubuc prosecutor were to attempt to bring
the prisoner to trial for treason ilter an oo-
qnittarin this case> he could not bring in evi»
deuce iiiiy one of die fhets tfhieh were mere
or len connected with, the present ehaife*
11iisfa.the plain and aeoeesary oCnstrnction of
the clause in the statute^ and entirely removea
the olijeelion. •

• I have to cdl your attention to an aothori^T
upon Ae question that has been started io»
lating to 'the speeifloation of the erime. It haa
been maintained, that we are bound to tpecify
the general nature of dm conapiiacjr heme wo
can proceed to phove the <iriaMnil mtentign of
the perties. On this tnWect I may nfor to
the gesetal tsims inwUdi ah BAgtiah aldtct-
ment haa been laid and fcnod relevant.* Sodb
A dediion, idthough it eaimot afibot the law of
Scotland as a oenclutive uutbority, vat ia;r#-
spaotdbteia its way, and worthy eteonaiffcv*
utiom I Mbmit that in describing the iUefal
iodfltieB, Ao temife uM in this English in*
dietment'tre more geavial thato Aoia wUdi
dm praiechtor has employed on lids ocaasioii,
and to which an otgectxm has been taken. On
dmwhol^ I ma&maitt tiuit dm indietaMnt be-

^ JSL V. Mcon^aod :o<faer% « JBL 41^
,1 Aim. tm ; 3 CUl» Crim, JLetcylO).

1871

ff! GEORGE III.

Trial of miUam Edgar

[188

fore yoQy in the £)rm in which it is liid/ (Might
to be ftmnd rdevant.

Mr. GfarA.^— Tliis indictment 'proceeds upon
nn act of parliament passed in the 52nd year
of his majesty's reign, against' administering
nclawfiil oaths ; and accordingly certain clauses
of the act are set forth in themuor proposition,
ts containing the description of the crime to be
diarged. This being the accusation, I need
not remark that it would haVe been easy for
the ]^nbUc prosecutor, if he had a case faitting
within the act of parliament, to confine him-
self to it in the minor proposition of his indict-
ment, by 'Stating in plain terms, that true jt
was and of verity, tiiat the panel had admi-
nistered such an unlawful oatn as that which
was prohibited by the statute— reciting the
terms of the oath— averring that an oath in
theie terms ftll under the statute as being a
tnosonable oath — stating how and in what
TCspectit was treasonable, and to which of
^ different species of treason it iqpplied —
and specifying- the time, place, and occasion
of connnitting the crime. The relevancy of
such an indictment might perhaps have been
sustained. But the pifblic prosecutor has not
confined himself to the proper charge appear*
ing on tiie major proposition of his own inclict-
ment, but has attempted most illegally to in-
tiodnce' matters totuly unconnected with it,
for the purpose of embarrassing the prisoner
with accusations of a kind totally dmerent,
and which cannot be the subject of inquiry
with reference to this charge.

In aid of his argoment the public prosecutor
has founded on an Englidi case, in which one
was convicted on evidence of circumstances to

rre Ids intention in administering an unlaw«
oath. I mention this now, because it is
proper to Udce an eariy opportunity of distin-
gniMiing that case from tne present. I know
veiT little of the English case referred to; but
on hearing it read, I observed quite enough
to perceive that it was a case totally diiSerent
fipom the present— proceeding oa another act
«r Parliament, different in its terms from the act
which is now fbonded on by the public prose-
cutor. Under the former act it is competent
to prove the intention of the unlawfid oath by
dreumstances extraneous to the oath itself,
though that is not oompetent in the present
case, in which the Court and jury must cour
sider the terms of the oath and nothing else.

It has to-day been noticed more thvi once,
^t besides the act of pariiament libelled on,
there is 'another ael^elating to unlawful oaths.
But when yon attend to the language of that
act, you will see the difference between the
terms ^re used, and those which are em-
ployed in this act of the 52nd of die kin^, and
yovL will see the reason of that difference, and
now it ought to afitect indictments founded on
these acts.

■ The indictment before the Court is founded
en the act passed in tiie 52nd year of his ma*
jesty, directed against those ^ who shall, in
imy manner or form whatsoever^ administer,

or eanse to be administered, or be aiding or
assisting at the administering^ of any oath or
engagement, pwrportmg^ or nUendmg to bind
the person takioff the same to commit any
treasoq." &c. These persons are liable to the
punishment of death, and every person iriio
shall take the oath is punishable by transporta-
tion. By the 4th section it is enacted, that
persons aiding and assisting at the administer-
ing of any such oath, shall l^ deemed principal
omnders, and liable to the same punishment
of death. By section 5 it is not necessary to
set forth the wqrds of the oath, and it ** shall
be sufficient to set forth the purport of sodi
oath, or some material part thereof.'* By
section 6. *^ any engagement or obligation
whatsoever in the nature of an oath, purport'
ing or miendmg to bind the persoa taking the
same, to commit any treason, &c. shall be
deemed an oath, within the intent and meaning
ofdiisact.''

Now, by comparing this act with the former,
it appears, that as the penalties are more severe,
so me description of the crime is more limited
than in the former act It is necessary that
the oath or engagement shall j?Hrpor^ or intend
to bind the person taking the same to commit
the treason, or other crimes punishable with
deadi, wbidi plainly signifies, that the purport
or intendment of the oath only, or, the true
meaning of its words, shall be considered in
any prosecution against those who administer
it. The purport of an oath has no reference
to the in^tion, criminal or otherwise, of the
party who administen it. The words of the
oath may be innocent, and vet the intention
may be very criminal. On the other hand, the
words may oe veiy mischievous, and vet the in*
tention may be otherwise. But the legislature
imposes the penalty according to the purport of
the oath ; the intendment is the same with the
purport in speaking of the oath ; and either ot
these terms may be considered as synonymous
with the true meaning of the oath separately
considered, and without regard to the intention
of the party who administers or takes it.

In one view, this statute is uncommonly
severe, inflicting, as it does, a capital punish*-
ment for administering an oath which may be
followed by no crime whatever. And even ia
taking tibe'oath according to its. purport or in-
tendment, there is much severity; because the
notion or opinion of the party who administers
or takes it, as to its meaning -and object, may
be very different from the opinion of a court
of law as to its true construction, and so the real
intent ef the partv may be muchlesscriminalthan
the ' intent whioi is imputed to the oath itself,
by the judgment of the CourL Bu^ on the
other hand, while the act is foil of severity on
tAese points, it is lenient, in so for as it restricts
the charge to the purport, intendment, . or true
meaiiingof the oath, and does not admit of aproof
(Which might be veiy loose and unsatisfactory,
and very hard upon the prisoner to be tried)of an
intention on his part, that went beyond the true
meaning of the oeta which he administered. '

fir ^Mmdermg unla^ Oaths.

18P]

For tbttftfit docf not allow it to be proved,
tlttt ihoogfa the words of the oath were appa-
rently ioDooent, yet that under colour of an
-inoocent engagement the moat criminal inten-
tions were concealed or C07d!red. In what way
soever te pablic prosecutor may make a
diaige of that kind (which supposes, no doubt
(hat a neat crime had been committed), it is
plain that he codd not make such a charge
under this acL And the statute tempeis its
own severity with lenity in an6Aer important
circumstanoe. Those who aid and assist in
administering tbe oath, are liable to the punish-
ment of doth ; but those who were present at,
and consentinff to the administering the
oath, are not liable as for administering it, and
it seems to have been the intention of the legis-
lature that they should not be so liable.

This act may be contrasted with that which^
WIS passed in the 37th year of the kin^, in
which, though the punishment to be inflicted
upon offenders was less severe (transportation
for seven years), there is a much ^^reater an-
xiety to prevent them from sscamng; and,
•coordinglv, the cases in which mat puniab-
ment may be inflicted are much more numerous
and comprdiensive. It is enacted,* ^^That
any person or persons who shall, in anymanner
or form whatsoever, administer, or cause to be
administered; or beaidiuff or assisting at, or
praad and conaadmg to the administering or
taking of any oath or engagement, purporting
or mUnded to bind the person taking the same
to engaee in any mutinous or seditious purpose ;
or to disturb the public peace ; or to be of any
association, society, or confederacy formed for
any sudi purpose; or to obey the orders
OfT commands of any committee or body of
men, not lawfully constituted, or of any leader
or commander, or other person not having
authority b^ law for that purpose ; or not to
iafomi or give evidence against any associate,
confederate, or other nerson; or not to reveal
or discover any unlawful combination or con-
Ibderacy; or not to reveal or discover any
illegal act done or to be done; or not to reveu
or discover any illegal oath or engagement
which may have been adnkinistered or tendered
to or taken by such person or persons, or to
or by any other perKm or persons, or the
import of aiqr snob .oath or engagement;
ahalL on conviction thereof,*' &c. And by the
third kection it is enacted, ** That persons
aiding and assisting at, or prtitnt at and am-
aeafni^ to the admmbtering or taking" of
^he oath, &c. shall be deemed principal
otfendei&

Here is a very numerous collection of crimes;

and as to the oath itself, not only are the

persons liable to the' statutory punishment,

' who are present at and consenting to the ad-

ninistering or taking of it, but every oath is

eomprehended, where it is of the nature sped-

•tfed, either in its purport or meaning, or where

•It is intended, by the par^ admioistering

,^ 37Geo. 3cd, c. 133, s. 1.

A, D. 1817.

1100

or' taking it as..aq^ path of thai deseriptaon,
whatever mn be .its particular words. For
the terms of the act are ^- purporting or w-
tendtd.Xo bind f fmrporOMg refers to thf mean-
ing of the oath; tntaided refers to the intention
of the party. An oath purporting to bind, is
mtendea hj the party for that, purpqse. The
purport of the oath, and. the intention of the
par^, may be diflertot; but the statute makes
him liable for both; not merely the meaning
of the words emplq^, but- his own iptention
(pQosibly a secret intention) in using thev,
which may be ynuch more miscbievons or
wicked than the plain or true meaning of the
words. Accordingly, in the Engliui case,
which was tried upon the 37th of tte king, the
meaning, object, and intention of the party,
distinct from the meaning. of the words, was
allowed to be proved. There was dearly roosa
in that act for the construction put upon it bj^
the learned judge* who presided at the triaL
But whatever 1^ the constructioB of that ad,
there is not the least room for such a oqnstnM>>
tion in the present case, where the words, as
well as the objecte of this statute, . are so
very diflerent The words ^ potporting or in-
tending to bind,** plainly require en osM whicb
purports or intends to bind, and refer e>-
dusively to the intendin|( or intent of. the oath,
without regard to the intending or intent of
the party, further than his intent to administer
or take Uiat oath. And this was apparently
admitted bv Mr. Solidtor General, when he
observed, that the meaning, purport, and in-
tention of the oath, are to be referred to in

this argument, and not any. c^ospiracjf or
traneous drcumstances. Inos there is a
son sufficiently evident for ezchiding a proof
of circumstances whoe the indictment is laid
unon the 52nd of the king, which might be
admitted where the indictment is laid on- the
37th of the king. And if it be oompetent
under the 37th to prove the intent of the
party by dicumstanoes whidi do not appear
from the oath, it was intended by Uie 52|mI
. that no evidence beyond the terms of the oath
itself should be allowed for proving the tnteni
of the party.

If the observations I have now made are
well founded, the public prosecutor is. entirely
wrong in attempting to introduce in the
minor proposition of the indictment a long
detail of circumstances, with no other object
than to establish the supposed wioked intent
of the prisoner, by evidence thai is extraneous
to the administering of the nnlawlid oath. The
prosecutor ought to have confined himsdf to
that charge ; and I must again observe, thai
he had it in his power to frame an indictment
without obiection, by the proper redtals of the
statute and of the oath, with proper aUegntioos
that the oath was prohiUted oy the act of naih-
liament. But instead of adopting thif plain
method of proceeding, he. has d^K!q|ea the
pand yriih an indictment that is evposed to
mnumeiable^obieotiQns. .; , . i .

* Lord Alvanley ; C JB. 4*0, n.^

IMI

57 GBOROB Ifl.

Tritd^mUkmOfg^

[IW

noobjedtioii

would be fiiiBcieiit to' ofest the iadieCtteiity if
BO other could be * stated. Bat I sheU rtmark
upoD some of the other olgeotioiis. A good
deal was said upon the competency of a gMie-
-nl charge of high treason made in an indict-
mept, without pointing out any particular
apecies of treason. There can be nodo«bt
whatever^ that where tire party is to be tried
lor the crime of high treaiony a general charge
of high treason made against him in tiie in-
dictment would be good for nothing, and
would at once be dismissed. For there are so
many different kindii of high treason, eadi of
them distinguishable from all the rest, that
it would be Just as welT to charge a man with
> iMtring committed a crime, without saying what
crime, as to charge him with haring committed
treason, without saying what treason. But it
seems Jto have been thought by the prosecutor
that in this indictment it is sufficient to refer
to high tteason generally without distinguish*
ing between one treason and another, b^use
the pandl te not to be tried for committing high
treason, but for baring administered an oaUi,
pfurporting or intending to, bind the person

IhaifejostMfoifedtolcablc. Itseemathebto beinlispiEtable, thai

the species of treason, should hare oeen alleged
or assigned in this indictment, and that the
totel want of the specification in it is as olijeo-
tionaUe as it would be in a trial for high
treason. The objection is founded on the gieat
and indispensable rale in criminal justice,^thal
the panel ought to have notice of the pvecise
accusation against him ; and the want of such
notice in this indictment makes the case pre-
cisely the same as if the prosecutor had
attempted to proceed without an indictment
at all.

Another objection to the indictment was
strongly and doquentlv urged by Mr. Crans-
toutt, that you cannot, n>r the proof of a crime
that is charged^ prore any other crime that is
not charged. This was stated, on the authori^
of Mr. Burnet, and of long practice. But one
or two cases were cited against us by the
counsel for the prosecution. I do not admit
that these cases were correctly stated ; but, ai
all erents, they do not establish that the pro.
secutor is entided to prove the extraneous cir^
cumstances alleged in the present case. One
of the cases related to the uttering of foiged

taking the same to commit high treason. In a notes within Scotland, and it was said, that id
ohaige of this kind, it has been thought unne- order to prove the charge of uttering in Scot^
eessary to spedfy the treason which the oadi . land, it was competent to prove the forgeiy of
purported or intended to bind the person the notes, although that crime was committed
taking the same to comnnt But it seems to in England. That was a case of crimm cmh
be obrious, that there is precisely the same fimwm, in which the criminal act was begun in
reason to specify the treason in this case as in ' one place^ ooniinmd and completed in another,
a trial for high treason itself. If it be unneces- ; If I recollect right, a case occurred some years

•salT to spedfy the treason in this case, would
it be snfflcient to aUeffe, that the oath pur-
ported or Intended to bind the person talcing
nie same to commit a crime^ without spedfy-

ago, in which evidence of one crime to prove
another was allowed, and the panel was con-
victed on a proof of that descriptioo. But that
oonriction was not approved of in another

wg what crime, or giving any notice whatever , quarter, and when the circumstances attending
to the pahel of the nature of that offenee whleh it were known, the man got a pardon, in re»-
Ihe oath purported or intended to bind the pect of the manner in which his trial had been
person taking the same to commit! It is i^ain, conducted. One of your lordships will pro-
-that in such a case the pinel would have no bably support me in this account of the case to
iiotie# at all of the crime for which he was to , which I now allude. I do not recdlect the name
1m kied. An oalh, binding the penon taking of the party.

^^ ii -- i!!r jJT*^ J^!wl5" iL-^r« 1.U «des with what Mr. Clerk has suted ; but 1

s^'ss^sr/rrXir^ir^i do.otp.rti<^i„.yr«»u..ith.ci«««.t«K«.

defence emnpletely conclusive against the ai- Mr. Clerk, — There are no dkta in the work
leaation, that the oath led to the commission of Mr. Hume, nor in that of Sir Greorgo
6r one crime, would be no defence at all, if , M'Kenrie, inferring that a crime m^j be
the prosecutor sliould not insist on that, but on > proved by another crime which is not libdled ;
a diferent sllegafion, namely, that the oath led and the authority of Mr Burnet, who was a
to the commission of another crime. The very attentive observer of the proceedings in
panel might be prepared to defend 'himself criminal cases, is directly against the doctrine,
as to the application of the oath to one-half of . He lays it down expressly, that one crime

the erimes & the Statute-book, aiid yet, baring
no distiOct Notice of the prosecutor's views,
ndght be in iio state o# preparation to defeord
himself as to the a|[yphcation of the oath to
adiother erim'^ of which he had no notice, and
of mtika he had never thought. The same con-
dd^tioii shei^ that among the different
•pedee iH lrektf6n,that jparticiilaT spedes should
be poiBtel oat in the mdietment, to which the
pKose^utor is- to imist that the oeth was appti^

cannot "be proved by another. Thus the autho*
•ri^r as well as Um justice of the case, is on the
sioe of the accused.

But there is another objection to a moof of
the oonspitacy here mentioned. The allegation
is in snbatance a charge of high treason ; and
would your lordships allow sudi a charge to be
proveo, under this indictment, In direct con*
tradiction to the Act of Pariiament upon whidi
you try crimes of treason? Without the inter-

1091

J«T Admmslerittg unlaHofid Oatht.

A. D. 1S17.

[104

ventioa of a mud juiy, treason' cannot be
tried. But if it be ntteriy incompetent to
prove an allegation, it muist be equally incom-
petent to maJce the allegation. No party is
entitled to allege what it is not competent for
him to prove. And, if the public prosecutor
cannot be allowed to prove the crime of
treaaoUf it is impossible for him to proceed on
this indictment.

To another objection, no sufficient answer
has been made, that if the proof of treason is
entered on, the trial is a pnblic precognition;
and if the result in this present trial does not
satisfy the prosecutor, tne panel may be tried
agiun upon the same &cts. What was said in
answer to this? From the very terms of the
act of parliament the panel cannot be tried
again for the same offence. What is the same
•TODce T The prisoner is now to be tried for
administering the oath, and not for high trea-
son. The two crimes are altogether different.
The prisoner, if he is acquitted, cannot be tried
for hi|;h treason, on account of his having
administered a treasonable oath; but there is
nothing in the statute against his being tried
for a separate treason, extraneous to the charge
of having administered the oath. But, accord-
ing to the idea of the public prosecutor, the
oath may be connected with overt acts of
treason, which might be distinctly an# sepa-
rately charged; and if it were permitted to
prove thete overt acts incidentally in this trial,[the
prisoner, might, on such a precognition, be
afterwards tried for treason.

Another objection is, that the requisite speci-
fication ci die aUegedconspiracy has been with-
hdd by the prosecutor, the prisoner not having
Veen fovonned. with the names of any of the
persons alluded to as engaged in the conspiracy;
and this objection is of itMlf fatal to the indict-
ment. It IS stated in the indictment, that the
prisoner wickedly, &c.conspired,&c. with other
evil-disposed persons, to break and disturb-the
pablic peace, &c. But no one of the persons
engaged in the conspiracy is mentioned. Why ?
We luive not even been told that the public prose-
eatardoei noi kmow the names of these supposed
persons ; but if he was ignorant of their names,
■e should have said so ; for in an indictment,
the public prosecutor should give a full detail of
what he knows to the panel, for the preparation
ofhis defence. When a fact that should bostated,
if known to the prosecutor, is unknown to him.
He sboald . at least state that such fact is un-
known to him. He should do evenr thing to
apprise the accused of the nature of the proof
vdijch he has to meet. Where that is not fair-
ly done, the prisoner is entitled to object that
be has not received the notice on the subject to
vrfaidi he is entitled by law. If a panel be
^taiged with a wicked conspiracy, he should be
udbrmed of the other persons with whom
he is supposed to have oeen engaged^ if the
praeecntor knows who they are ; and he ispre-
mmeti to know them, if he ^pe9 not state
that they are mdinown to him. How hard
woold it be if the law were otherwise ! • A con-

VOL. XXXIII.

spiracy charged may be one of fifty supposed
conspiracies. If the conspiracy is not identi-
fied by the names of the persons engaged in
it, how can the prisoner know what the prose-
cutor really means to charge?

The other objections to this part of the indict-
ment, though they may be less material, are
still of ver^ great importance, and their validity
is recognized hr Mr. Hume, who employs
many pages of his valuable work upon ques-
tions of this description.

The gentlemen opposite admit that fair and
reasoniJ»le notice ox facts must be given, and
that Mr. Hume says so. He does indeed say
so. But, although they acknowledge his au-
thority, they assert, that such notice is not
always necessary. How does this agree with
the opinion of Mr. Hnme^ who says eipressly,
that where the public prosecutor has it in his

Sower to mention particulars, and where his
oing so may be essential to the information
of a panel for his defence, the Court will not
oblige the panel to answer without his gating
a fuU and particular statement of the charge
against him.

I come next to the argument maintained on
the import of the oath. It is asserted, that an
oath in certain terms was administered by the
panel. I do not profess to understand the
precise meaning of this supposed oath. It is
rather loosely and indefinitely expressed. To
understand it precisely is, however, not ab-
solutely necessary to the consideration of the
question before the Court, Whether this be a
lawful oath, is no^ the question. The oath may
be extremely wicked, and perhaps there is no
one who now hears me wno does not think
that there was a bad intention in it. But that
is not the question before your Lordships.
The question is, whether thai* oath amounts

TO AV OBLIGATIOH TO COMinT HIGH TREASON?

Where a man is indicted for the crime of mur-
der, the question is not, Whether he has been
guilty in other respects? whether he has
committed a robbery or any other crime P —
he has oidy to answer to the indictment for
murder. Ine question here is. Whether the
oath did purport and intend an obligation to
commit high treason? For the oath is not said
to be an ^ligation to commit murder or other
felony. It is alleged to be an obligation lo
commit tre^on, and to that allegation the ques-
tion is confined.

The averment of the pnblic prosecutor upon
this point is expressed thus in the indictment,
^^ which oath or obligation did thus purport
or intend to bind the persons taking the
same to commit treason, by effecting by

giysical force the subversion of the Established
ovemment, laws, and constitution of this
kingdom."

Mr. Cranstoun,. in his excellent speech,
completely demonstrated the fuiUity of this
averment, both in its form and in its sub-
stance ; but it appears to me that an argument
much less complete and powerful would have
b«eQ quite somcient in such a case. For can

195}

57 GEORGE III.

THalo/miUamSdgdr

ri90

it be possible to sustain an indictment aUeging,
with so little specification, an obligation to
commit treason? Who does not know that
tbece are a great variety of treasons distin-
guished from each other by difference of species,
in the same mannerandto the same effiectas other
crimes, which are known each by its species
and so distinguished from other crimes which
do not belong to that species ? Yet the indict-
ment contains nothing to mark the species of
treason which was to be committed. It ap-
pears from his words, that the prosecnior
wishes to charge the prisoner with a delin-

2nency that has a relation to some treason, bat
lat is all. His meaning goes no further;
and such is not a legal meaning when express-
ed in an indictment, as the substance of a
charge to be tried. Indeed, it is so indefinite,
that ] do not understand what it really imports.
Cleariy it does not sufficiently describe any
known treason. It seems to point at a treason
to be committed by levying war. But is there
any word about le^yin? war in the indictment?
Not one syllable ; and yet it is acknowledged
by every authority from Coke downwards^
that where a man is tried for levying war
against the king, the levying of war must be
specially set forth in the charge ; and however
brief and general our neighoours may be in
drawing their indictments (and they are more
so than we), this specification is required, that
the parties have conspired and actually engag-
ed in levying war [Mr. Clerk here referred
to Lord Coke and Sir Mathew Hale, and made
some further .observations relative to a charge
of levying war.]

All this shows, that if in the present case
the treason to be committed was levying war,
that species of treason should have been set
forth. But in this indictment, though the oath
is set forth, and certain words are used, in-
tended as an averment of its criminal ten-
dency, the averment is in terms so vague and
general, that it cannot be gathered from them
what the prosecutor means as to the species of
treason which the prisoner had in view.

Thus the meaning of the oath, whatever it may
be, is not sufficiently charged in an indictment
proceeding upon the statute 52 of the king.
And though an exposition of its actual mean-
ing may be attended With difficulty (perhaps
no <^rtainty can be had in expounding it), it
is easy to show, that it cannot be regarded as
a treasonable obligation, however objection-
able in other re8|>ects your lordships may thin^
it. In considenng this obligation^ I shall lay
«iside for a moment two circumstances that are
immaterial to the question. Whether it is an
obligation to commit treason ? one is, that it
is an oolA— another, that it binds to secrecy;
for these circumstances, though they are of an
aggravating nature, do not make the ohligaHon
more or less treasonable. As an engagement
may be treasonable, without being in the form
of an oath, so an engagement may be confirm-
ed with an oath, without being treasonable or
criminal at all. In one remarkable transac-

I tion of this kind, an oath, when moposed wss
I rejected by the most determined or the con-
spirators.

** No, not an oath :

what other bond
Than secret Romans, that have spoke the word.
And will not palter?^ *

The nature of a conspiracy is the same witk
or without an oath, though an oath may be an
aggravation of its wickedness. In the i^e»*'
' tion whether the engagement was, to commit
the crime of treason, I may therefore lay dot'
of consideration the circumstance that it was-
in the form of an oath. Again, an oath o£
secrecy may be wicked, even although the ia^
tention of the persons who t^e it is innocent
in other respects ; and it will not make an en-^
gagement or obligation treasonable or othei^
vrise, that the parties to it were sworn to se*
crecy. Ihe question as to the tme nature of
the obligation, as being treasonable or not
treasonable, evidently caimot depend upon
the secrecy to which the parties were sworn.
The form of an oath, and an oath too of se*
crecy, may and will greatly aggravate the o&
fence that is committed by entering into way
conspiracy, whatever its illegal object may be.
But neither the oath itself, nor the obligatioa
of secrecy, will make that treason which is not
treason, nor change an obligation to commit
any illegal act or crime, in itself not treason,
into an obligation to commit the crime of high
treason.

Keeping these important considerations in
view, that an engagement may be very crimi^'
tial without being treasonable — ^that die int^-
vention of an oath does not make it treason*
able, — ^and that even an oath of secrecy cannot
have the effect to change a crime, how wicked
and dangerous soever, into high treason, if
the crime is not in itself high treason, but a
crime of another character and description, — ^I
shall offer some remarks upon the terms of
this oath. And here I roust repeat, that the
oath may admit of no certain or precise con-
struction. It may be understooa in twenty
different senses by twenty different persons.
Perhaps no two men wonld agree with eadi
other as to it» precise meaning. But my p»re-
sent task is not to show the precise meaning
of the oath, but a different and an easier task,
namely, to show that it does not import an
obligation to commit high treason. For this
purpose- I shall offer a very few remtiks
upon it.

Nothing can be known of the nature of this
engagement, but from the words of it. The
party binds himself by an oath, and the first
part of his obligation is expressed iii theta
words : ^ That I will persevere in my endea-»
vouring to form a brotherhood of affection
amongst Britons of every description who are
considered worthy of confidence ; and that £
will persevere in my endeavours to obtain for-

* Shaksp. Jul. Cses. Act 2; Scene 1.

t97]

Jot Mminuitrhig unlatioful Oaihs,

A.D. I8I7.

1198

all tke peofle m Great Britain and Ireland,
not diaqnaiified by crimes or insanity, the
elective franchise at the age of twenty-one,
vilh free and eqaal representation, and annual
parliaments." The purposes here expressed
are, I piesame, innocent of treason, though it
wonld not be easy to tell the precise meaiv*
jng of the words, and it is evident that they
hsLve no precise meaning. On the con-
tiaiy, they are so extremely vague and
indefinite, that every person taking such
aa oath seems to be at full liberty to put
his own meaning upon it, without being at all
exposed to the reproach of refusing tb fulfil
Ins obligation. Universal sufir^e and annual
paxiiaments are very naturally supposed to
Aave been the objects in view ; but still there
is nothing in the engagement itself, nor in the
manner of expressing it, tiiat is treasonable or
even illegal in any respect. If the obligation
had stopped with the words to which I have just
lefierred, a prosecution for aidministering a trea-
aonable oam would have been utterly absurd.
But the obligation proceeds with other
words, which are supposed in the indict-
mast to be treasonable, ^ and that I will
SQpport the same to the utmost of my power,
ei^er by moral or physical strength as the
case may require." These words are the
foundation of Uiis indictment, and the material,
if not the only c^estion, as to the relevancy,
depends upon their meaning, or rather upon
die question, whether they sidmit of no mean-
ing or construction but one, the meaning
alleged by the prc^ecutor, who argues., that
they purport and intend to bind the party
taking the oath to commit the crime of high
treason. It is to be considered, whether the
words have that treasonable meaning, or if that
ia not their meaning, it is evidently of no con*
sequence what they mean.

The words of the oath now under considera-
tion bind the party to wpport the uxme ; and
there has been some argument as to the mean-
ing of supporting the uane, as the words occur
in this part of the oath. It was said for the
prisoner, that when taken along with the pre-
vious words of the oath, the meaning of the
whole is, that the party should persevere in his
ehdeavours, and in particular, his endeavours
to obtain annual parliaments and universal
iufirage, and also to support the same, namely,
the annual parliaments and universal suffrage,
when- obtained and recognized by law. Ao^
ooiding to this construction, the oath in-
tended any thing but treason. It was to sup-
port a l^al establishment when it should be
obtained, and not even to support an attempt,
though legal, to obtain a change of the exist-
lag laws. And this view of the oath seems to
be perfectly well-founded. On the one band,
there is an mcbngmity in saying, that the party
will support his own endeavours ; and, on the
tither, the expression, ** support the same,'^ is a
relative thai can only apply* to the last antece-
dent, unless it appears m>m the grammatical
«Mistxiictioii, or ttou^ the meaning of the con-

text, that the relative necessarily applies to
former antecedents. But that is not thecase here.
There is a disjunction, not only in the sense,
but in the grammatical construction, of the
subject of annual parliaments and universal
snfnrage, from the previous part of the oath.
The more natural construction of the obliga-
tion to ^ support the same " is obtained,
therefore, by referring it to a support of the
wished-for changes when recognized by law.
And there is another consideration, which
leads to. the same determination of the ques-
tion. There are many rules for the interpreta-
tioapf words ; but the great rule of interpreta-
tion in a criminal charge is, that in case of
doubt, that construction which is roost favour-
able to the accused must be adopted. And if
the prisoner is entitled to the benefit of the
rule I have just mentioned, J cannot see much
difference betwec-n the interpretation offered
on his part, and that which has been contend-
ed for by the prosecutor. For, whether the
phrase, ** support the same/' shall be referred
back merely to the proposed changes> when
obtained, or to the endeavours to produce
them, still it must be held, that the support to
be given is intended as a legal, and not as an
illegal support, and rather as a support of the
law itself, to be appealed to in every stage of
bis endeavotirsby the person taking the oath,
than as a support of illegal attempts to over-
turn it.

But the argument of the prosecutor is, that the
clauses now under consideration' do not merely
bind the person taking the oath, to support
his endeavours at innovation, but to '' support
the same to the utmost of his power, either by
moral or physical strength as the case may
require.'' The prosecutor seems to think, that
these words complete the treasonable obliga-
tion, and leave no doubt whatever as to the
meaning either of the party who administered,
or of the party who took tne oath. That there
should be no doubt as to the meaning of these
words, appears to be not a little extraordinary,
when it is considered, that if they have any
meaning at all, it is a meaning as vague, in«
definite, and uncertain, as can be imagined.
Yet the prosecutor thinks, that tliey can mean
nothing but treason, and he will not allow
that any other meaning can be put upon them.
Even the uneducated people, for whose use the
oath was contrived, must, without all doubt,
have understood, that it was the purport of
these words to bind them to commit treason !

These assertions are finely exemplified by
the abortive attempt made in the iudictment,
to put any intelligible meaning upon the words.
The prosecutor has not been able to apply
them to any description of treason, excepting
that constructive treason, which he would re-
vive after it has been abolished for several
centuries. And here it is proper to notice an
inexcusable gloss in the indictment, as to the
misaning of the words now under consider*
ation. The words of the oath are, f^Iwil)
sapport tiie same to the utmcet of my power,

199]

57 GEORGE III.

trUd of WaUam Edgar

raoo

cither by moral or physical itrtngthf* but it is
alleged in the indictment, that the treason was
to be committed, ^* bv effecting by physical
foiie, the subTersiott, &c. Here the word
itrenjgih is changed into the wordybrce, a word
of a different meaning. It has been said, that
th^ words are synonymous. If that is the
case, why change the one for the other? But
they are not synonymous. It is very true, that
on some occasions either word may be used,
without much, if any, difference of meaning.
But the same thing may be said of words, that
so far from being synonymous, have significa-
tions that are very different. The distinction
between strength and force is quite obvious.
Strength refers to jKntwr,— force to the violeni
$me of that power. Force always implies vio-
lence, but strength does not. A precept in
the Holy Scriptures is thus expressed, '* Thou
shalt love the Lord thy God with aU thy heart,
and with all thy itrengtk." How would this
passage read with the word force instead of
the word itrength? To support with moral
and physical strength does not mean that vio-
lence is to be used at all. So far from mean-
ing that violence is to be used in attacking
others, it does not necessarily mean thai vio-
lence which may be used in resisting the
violent attacks of others.

Thus, it has been assumed, with very little
ceremony indeed, that the moral and physical
strength referred to in this oath, was to be
applied for the purposes of treason. It seems
to DC just as reasonable to take it for granted,
that the moral and physical strength was to be
employed in the commission of any other crime.
Can a reform in parliament be promoted only
by the commission of treason ? No, it will be
answered ; but treason, if it was useful or ne«
cessary, was to be committed. Then, if the
parties wer^ not to shrink from the crime of
treason if necessary for the^e purposes, it must
be supposed that they would have been
equally ready for the commission of any other
crimes. But, I ask, whether, according to the
meaning of this oath, the parties who took it
were bound to commit murders, robberies,
thefts, eveiy sort of crimes, in order to pro-
mote reform in parliament? Is it possible
that any human Deing can be so destitute of
charity and common sense as to put that con-
struction upon the oath ? When I bind my-
self to forward the purposes of reform to the
utmost of ray power, by moral and physical
strength, am I bound to commit all or any one
of the crimes which have been mentioned?
Must I rob on the highway in order to promote
annual pariiaments and universal suffrage?
And if the oath is not an obligation to commit
crimes generally, is it not absurd to say, that
it is an obligation to commit the greatest of all
crimes, the crime of treason ? To maintain a
proposition so monstrous, is the best example
to prove the danger and atrocity of charsres of
constructive treason. Suppose one of the
persons who are stated in the indictment to
nave be^ engaged in a conspiracy; bat whose

names 4rt not commuoicated, had been told
that the oath being an obligation to support
the plan of annual parliaments and univemd
suffrage to the utmost of his power, by moral
and physical strength, so he was required to
commit some great crime, an assassination for
example. If such a conversation among these
conspirators can be supposed, the person ad*
dressed might surely answer, I engaged to do
every thing in my power to obtain annual
parliaments and universal suffrage, but I have
not engaged to do any thing that is against
law — ^there is no such obligation in the oath.
Could any one of the fraternity have replied,
you are bound by the obligation, and must now
perform the part you have undertaken : This
assassination wili support the cause of univer-
sal suffrage; and it is an act within your
power. This reasoning would hardly serve ;
and if there is no obligation to commit a great
crime, there is just as little to commit a small
erime. The oath does not purport or intend to
bind the party taking it to commit any crime
whatever, or even to infringe the slightest rule
of morality.

Nor is there any difference between a mere
paction in such a case and an obligation
strengthened by an oath, how tremendous
soever. As to the present question, the cases
are quite the same.

But it is said, that if the intentions of the
parties were so innocent, why take, an oath ?
Why this obligation to secrecy ? I have an-
swered that sdready. I do not know why
there was an oath at all. I do not know why
it was an oath of secrecy. I have heara,
indeed, that some politicians have not the
most absolute confidence in each other.
There are animals known by the name of rats,
of whom I sometimes read in the newspapers,
who are said' even to infest a certain great
assembly. Some of those who were engaged
in this association may perhaps have suspected
that animals of that species might get amongst
them, and, in order to prevent such an acci-
dent, they had recourse to the oath. Why
was there an oath of secrecy ? I see no rea-
son why they should have bound themselves
to secrecy, ant is secrecy to imply the great-
est atrocity of conduct? If they wished fbt
secrecy, does it necessarily follow that they
were to commit treason? Many enterprises
require secrecy. That there were persons
whom they did not wish to offend, might be a
sufficient reason for their secrecy. . Jt would
be very unsafe, indeed, to infer the illegality
of any combination from the circumstance
that it is held together by an oath of secrecy,
but it would be still more unsafe to infer a
treasonable conspiracy upon such flimsy
grounds. But the question is not, Whetiier
the obligation to secrecy was right or wrong ?
The only question is. Whether Uiere is in this
oath an obligation to commit treason? The
question is not. Whether the panel committed
treason in any way? but it is. Whether .there
is in the oath any obligation to conait trtSf

SOI]

Jor AimmUUring unkmfiit Oaiki.

•cm? OntbeM <iM«tk)D0^ I think it iiiinec«8-
lary to trouUe your lordslupft witili any farther
obsenrations.

lard Jtatke Clerk, — ^After the uncommonly
able arguments which you hare heard from
both sides of the bar, die question for your
lordships' consideration is. In what manner
jon are now to proceed in determining whe-
ther the present is a relcTant indictment P

Lord EermamL — ^I had no doubt in my
mindy when I first saw the Indictment, that it
was relevant. But a great deal has been said
to-day on the competency of alleging one
crime in order to proTe another. I have formed
no opinion on the objections which have been
stated to the indictment ; and being desirous
to understand them thoroughly, I wish to see
them discussed in informations. Several au-
thorities have been cited, particularly by Mr.
CranstouUy and it would oe proper to have
them fully stated, before giving any opinion
with regard to them.

Lord GiiSa.'—I am of the same opinion^
and strongly wish to see Informations.

Lord FUmilfy. — ^I am particularly anxious to
consider that point which we have heard de-
bated, and which is of general importance —
I mean, the question as to the admission
of the narrative part of the indictment to
proof.

With regard to the other objections, I have
read all the authorities, and should have been
ready to give my opinion upon them. It does
not appear to me, that the cases of forgery
alludea to are analogous to this case. If
special acts of treason had been stated, the
introductory part of the narrative might have
been admitted to proof. But as the minor
charge is not treason, but a different erime,
zny mind is not yet made up to the opinion
that the indictment is relevant. As far as I
am able to judge, I cannot help thinking that
the panel, if acquitted on tms indictment,
might be again tried'for treason. -

. Lord JuUiu Cierk. — I am much in the situa-
tion of my brother who has last spoken. In
leferenoe to the meaning of the oadi, I have
given great attention to what has be^ said ;
and I had looked into authorities, besides
those referred to to-day.

As -to the other point, it has been most ably
argued, and is deserving of most serious and
d^iberate attention — ^whether it be competent
to let the public prosecutor . into a proof of
the nairative of this indictment. Tnat is a
point which, in reference to ^is important
case, and all other cases of a similar nature, is
deserving of the. most mature consideration.
This, too, is the first time that an indictment
has been broi^ht before us founded upon this
statnte. I am .quite clear, therefore, that the
solemn and regular manner of deciding the
potottsin question is, to have Informations
mepai^d, in which the uguments may be
Jiilly czhansted. . .

A. D. 18I7.

XHTBaLocirrom.

lam

9thJpra, 1817.
^The Lord Justioe-Clerk, and Loids
Commissioners of Justiciary, ordain par-
ties' procurators to give in InfSmrinations
upon the relevancy of the Indictitaent, to
see and interchange these Informations,
and to print, and lodge the saose with the
Clerk of Court in older to be recorded,
and that within three weeks ftom this
date : Continue the diet against the panel
till Monday the 19th day of May next,
at ten o'clock forenoon, in this place;
and ordain parties, witnesses, assiiers,
and all concerned, then to attend, each
under the pains of law ; and the panel m
the mean Ume to be carried baiw to the
Castle of Edinburgh.

COURT OF JUSnCLARY.
May 19, ISIT.

Rt Hon. Dmd Boyle^ Loid Justice Gerk. '
Lord Semani,
Lord GiiHa.
Lord PUmiUy.
Lord Eaton.

Comudfor $he Crotm.

Rt. Hon. Alexander MaconochUf Lord Advo^
cate [afterwards a lord of Session and Justi-
ciary, with the title of Lord Meadowbank.]

Jamet Wedderbum^ Esq. Solicitor-General.

H. Home Drummondf £sq.

K Warrender, W. S. Agent.

Cowmlfor WUliam Edgar,

John Clerk^ Esq.
Geo. Cranttoun, Esq.
Thoi. Thornton^ Esq.
Jamet Monaieff', Esq.
FrandiJeJrwj Esq.
J. P. Grant, Esq.
Hemy CodAum, Esq.
J. J, MfOTigfy Esq.

G. TT. Boyd, W, S, Agent*

William Edgar Vras placed at the bar.

Lord Juttice Cierk, — William Edgar, attend
to the indictment against you, which is now
to be read.

** William Edgar present prisoner in
the Castle of Edinburgh, you are in-
dicted and accused, at the instance of
Alexander Maconochie of Meadowbank,
his majesty's advocate, for his m^esty's
interest: That albeit, by an act pass-
ed in the fifty-second year of his pre-
sent majesty's reign, intituled, * An act
to rendet more efiectual an act passed
in the thirty-seventh year of his present
majesty, for preventing thf .admuuSter-

] 57 6BOBGB IIL

ingor taking nnUtwIbl oaths,' itistn/er
aHa enacted, * That every person who
shall, in any manner or form whatsoever,
administer, or cause to be administered,
or be aiding or assisting at the adminis-
tering, of any oath or engagement, pur-
porting ot intending to bind the person
taking the same to commit any treason or
mvtr&ty or any felony punishable by law
with deadi, shall, on conviction thereof
by doe eontse of law, be adjudged guilty
of felony^ and suffer death as a felon,
without benefit of clergy/ And fui^ther,
by seetion fbnrth «f the said act, it is en-
SK^ed, ^ That penona aiding and assist-
ing at the administering of any such oath
or engagement, as aforesaid, and per^
«>ns causing any such oath or engagement
to be administered, though not present at
the administering thereof, shall be deemed
principal offenders, and shall be tried as
such ; and on conviction thereof by due
course of law, shall be adjudged guilty of
felony, and shall suffer deaui as felons,
without benefit of clergy ; although the
persons or person who actually adminis-
tered such oath or engagement, if any
such there shall be, shall not have been
tried or convicted.' And further, by sec-
tion sixth, of the said act, it is enacted,
* That any engagement or obligation
whatsoever, iii th^ nature -of an oath, pur-
porting or intending to bind the person
taking the same to commit any treason or
murd^, or any felony punishable by law
with death, shall be deemed an oath within
the intent and meaning of this act, in
whatever form or manner the same snail
be administered or taken, and whether
the same shall be actually administered
by any person or persons to any other
person or persons, or taken by any other
person or persons, without any adminis-
tration thereof by any other person or per-
sons:' Vet true it is and of vebitt,
that you, the said William Edgar, are
guilty of the said crimes, or of one or
more of them, actor, or art, and part:
Jn so for at you, the' said William Edgar,
did, at secret meetings, and on other oc-
casions, at Glasgow, or in the immediate
vicinity thereof, in the course of the
months of November and December
1816, and of January and February, 181 74
wickedly, maliciously, and traitorouslv
administer, or cause to be administered,
or did aid or assist at the administering,
to a great number of persons, to the
sufnount of several hundreds, etn oath or,
engagement, or an obligation in the nature
of an oath, bindhag, or purporting or in-
tending to bind, the persons taking the
same to commit treason; which oath,
engagement, or obligation, was in the
fbllowing terms, or t6 the following pur-

Sort , — * In awful presence of God, I, A
I, do voluntarily sw^ar^ Aat I will per-

TrialofmiUam^Edgdr

[304

ievere in my endeavouring ia form a
brotherhood of affection amongst Britons
of every description, who are considered
worthy of confidence ; and that I wiU
persevere in my endeavours to obtain for
all the people in Great Britain and Ire-
land^ not disqualified by crimes or insa-
nity, the elective franchise, at the age of
twenty-one, with free and equal represen-
tation, and annual parliaments ; and that
I will support the same to the utmost of
my power, either by moral or physical
strength, as the case may require : And
I do further swear, that neither hopes,
fears, rewards, or punishments, shall in-
duce me to inform on, or give evidence
against, any meinber or members collec-
tively or individually, for any act or
expression done or made, in or out, in
this or similar societies, under the punish-
ment of death, to be inflicted on me by
any member or members of such societies.
So help me God, and keep me stedfast.'
Which oath, or engagement, or obligation,
to the foregoing purport, did bind, or did
purport or intend to bind the persons taking
the same to commit treason, by effecting by
physical strength the subversion of the
established government, laws, and con-
stitution of this kingdom, and especially
by obtaining annual parliaments and uni-
yersal suffrage by unlawful and violent
means. And, more particularly^ you, the
said William Edgar, did upon the 1st day
of January 1817, or on one or other of the
days of tnat month, or of ]!)ecember im-
mediately preceding, or of February im-
mediately following, at a secret meeting,
held in the house of William Leggat,
change-keeper in Ring-street, Tradeston,-
in the vicinity of Glasgow, or elsewhere
at Glasgow, or in the immediate vicinity
thereof, wickedly, maliciously, and traito-
rously administer, or cause to be admin-
istered, or did aid or assist at the admin-
istering an oath or obligation in the terms
above set forth, or to the same purport,
to Peter Gibson, John M'Lauchlane, John
Campbell, and Hugh Dickson, all present
prisoners in the Castle of Edinburgh ; as
also to James M^'Ewan, now or lately
carding-master at Humphries Mill, Gor-
bals of Glasgow, and M^Dowal Pate, or
Peat, now or lately weaver in Piccadilly-
street, Anderson, tn the vicintty of Glas-
gow, vrho, conscious of their guilt in the
premises, have absconded and fled from
justice; as also to John Conneltoti, or
Congleton, now or lately cotton-spinner
in Calton of Glasgow, or to one or other
of them, and to other persons, whose
names are to the Prosecutor unknown, the
said oath, or engagement, or obligation,
to the said purport, binding, or purporting
to hind, the persons taking the same
to commit treason, as said is. (9.) '^^
further, you, the said Williain Edgar .did^

9051

llll&llg^^OaiAf.

A. D. Wrti

upon the 4di day of Jtmiarj 1817, or on
one or other of the dvjn of that monih, or
of December ifiiBediately preceding, or
of February immediately following, at a
^eeret meetiiig held at the house of Neill
MwiD, inn^keeper aod stabler in Ingram*
street, Glasgow, or elsewhere at Glasgow,
or in the immediate vicinity thereof,
wickedly, maliciously, and traitorously
administer, or cause to be administered,
or did aid or assist at the administeiing
an oath or obligation, in the terme above
set forth, or to the same purport, to the
said Peter Gibson, John M'Lauchlane
John Campbell, Hugh Dit^uran, M^owal
Pate, or Peat, and James M'Ewan ; as
also to James Hood, present prisoner in
the Castle of Edinburgh, Anarew Som-
merWlle, John Buchanan, and James
Robertson, all now or lately prisoners
in Che Tdbooth of Glasgow, or to one or
other of them, and to other persons,
whose names are to the prosecutor un-
known, the said, oath, or engagement,
or obligation, to the raid purport, binding,
or purporting to bind, the persons taking
the same to commit treason, as said is.
And you, the said William Edgar, having
been apprehended and taken before
Daniel Hamilton, Esquire, one of the
SbertffiHsnbstitute of Lanarkshire, did,
in his presence, at Glasgow^ on the
6th day of March 1817, enxit and, sub-
aeribe a declaiation ; and hai^g been
taken before Robert HamilU^ fisqmra,
Sheriff-depute of Lanarkshire, yOu did, ia
his presence, at Glasgowy upon the fth
and 8th days of March 1817, emit and
subscribe two several declarations ; whidir
declarations, being to be used in evidence
against you at your trial, will be lodged
in doe time in the han<u of the Clerk of
the High Court of Justiciaiy, before which
you are to be tried, that you tnay have an
opportunity of seeing the same. At least,
times and places foresaid, the said oath,
or engagement, or obligation, to the same
pvirport, binding, or purporting to bind,
the persons taking the same to commit
ireasoD, as said is, was wickedly, malici-
oQsly, and traitorously administered, or
csLuaed to be administered; and some
persons did aid or assist at the adminis-
tenng thertof ;^ and you the said Williahi
Edgar are guiltj^ thereof, actor, or art and
part All which or part thereof, bmg!
nand proven by the verdict of an asatze*,
hekm the Lord Justice General, the X^brd
JusticeCleik, ind Lords Comraisiiioners of
Justiciaiy, yoa the said William Eidgar
ought to he pQfdshed with the pains of
law, to deter others' nQm committing tfie
like crimes in all time coming.

^ H. Home Druxk oiTo, >1» D/^

LIST OF WITNESSES.

t. Bfiiferi HamUUmt Esq. sheriff-depafta. of
' Lanarkshire.

3. Darnel fioantoi/Era. one of the 4i«ni^

substitute of Lanarkshire.

3. Dankl WCaUum^ clerk to Joluji Dryi^ale^

sheriff-clerk of Lanar^hirs^

4. Matthew Butms^ clerk to George Salmond,

procuratorufiscal of Lanarkshire.

5. Jckn LeMUe, derk to the said John Xhj^^

dale.

6. Jo$eiA Beidf writer ia Glasggy,

7. Alexander Cal4ar^ sh«rilMip«r ia Ghun

gow.

8. Jaares Z^omsoa, derk to the said Joha

Drysdale.

9. Jletander Hynier, ehange-keeper, QM

Wynd of Glasgow.

10. Marion M^Laren^ 0x M*Lachla% now or

lately servant to the said Alexander:
Hunter.

11. JbAnEo6er2Mm, inn-keeper and altahl«r/>aln

lowgate Glasgow.

12. Jgne$ CampbeU, wife of Thomas IXmr,

steam-boiler makes and smith at GM-9
wood and Company's foundry in Huichr.
esontown, in the vicinity of Glasgow. .

13. Janet l^eauMj now or lately servant ta

Neill Munn, innkeeper aad stabler in
Ingram-street, Glasgow.

14. AliMon WUton, now or lately servant to the

said Neill Munn.

15. Matthew Fyfo, spiritrdealer in Wilio^*.

street, Glasgow.

16. Jean Boyd^ wile of the said Matthew Fyfek

17. William Leggatf change-keepei;, iio Kin^.

street, corner of Centra-fUreet, Tiadftth
' ton, in the vicinity of Glasgow.

18. John Mitchell, we^ver^ residing iRWilki*Vt

Laod« Charles-street, Caltonof Glasgow.

19. Eugh Vkkfca, present prisoner in the

Castle of Edinburgh.

20. Ptter Oiifion, present prisoner there.

21. John M'Lauchlane, present prisoner there.

22. IFt^iiam^ismion, presei^t prisaifier (hate.
28. Jamet Haoa, pteaeat prisoner there.

24. John Cam^Uf present prisoner there.

25. nomas Smclair, present prisoner there.

H. Homb DauMMOVD; A, J>.

t • • •

LIST OS ASSIZS.

County of Edinburgh,

Francii Carter^ Scdtf of BaUemo.
Bichard Wooley^ of Whitehouse.
Jame» White^ tobacconist in Dalkeith.
Robert lyle^ baker there.
John Woodj merchant there.
JoAfi Bfoidn, farmer, Carrington.
Atudreo) JohnUan, farmer. Primrose-bams.

County of Haddington,

William Aicheton, junior, of Dnunmore.
John SommerviU Ox Moreham.
WUliam Emfj farmer, Howden.
John Brodiey £urmer. West Fentoa.
Moheri Hope, fanner, FentOn.

County of! LinUtbgoio,

WiUiamGUn oiJAM»,

3071

57 GEORGE III.

Tml 6/ WiOam Edgar

[308

WiBiam Diwirmy'ypmifer, Bonnytoun.
Jchn Trotter^ fiinner at Stacks.
JMfft Toi/lory residing at Blackness.
George TurvkuU^ fanner at Northbank.

CUy cf Xdinburgkk

Robert Fraur^ jeweller in Edinburgh.
noma Bichardumy merchant-tailor there.
J}amd Whiiekmfy watoh-maker there.
Peter Feddie, tronk-inaker there.
WUiiam Thtiter, upholsterer there.
Aletumder BtmeU, coach-maker there.
John Inoerarityy upholsterer there.
George Yule, meroiant there.
AleMmder Jtfii&e, saddler there.
John Sieelf confectionet there.
Jamee hmee, gunsmith there.
Darnel Forreti, hosier there.
Peter Smoeny saddler there.
George Hunter, merchant there.
Wilham Ret$, tailor there.
Cktrlee M'Xeafiy draper there.
JoHn Laing, saddler there. /
John M'^ereon, tailor there.
Franek Dmideonj confectioner there.
WUliam Cooper^ boot-maker there.
WUUam Dwnbretky hotel-keeper there.

TowneflMth,

John M^Kennef merchant in Leith.
Archibald Clegkomy corn-merchant there.
Thmm MatrUmy ship-builder there*
FUierte Patereony painter there.
CAorfef Bobertion, merchant there.
John Sandertf a^nt there.
JMi- Cir/cwer, Wright there.

Ad. Gilliu.

d. movtpsvmt.

David Dot7oias«

Lord Jmttke CfeHfe.--William Edgar, what
do you say to this indictment? — ^Are you
^il^ or not guilly of the charges contained
mitr

WUUam JS<(giar.— Not guilty, my Lord.

Mr. Gronffotm.— The prisoner pleads to the
indictment which has just been read, I have
to state to your lordships, that he is advised
to object to the competency of the present
proceeding ; and I humbly submit that this is
the proper time for stating «tbe objection to
. your loraships.

Your lordihips will recollect that the pri-
soner at the bar was latelv indicted upon the
statute the 52nd Geo. 3 , mr the crime of ad-
ministering unlawful oaths, binding, or pui^
porting or intending to bind, the takers to
commit die crime of treason. That indictment
was regularly served upon the prisoner— he
was brought to the bar — ^he pleaded not
guilty^-and your lordships, upon hearine a
debate upon the relevancy, appointed inior«
mations to be giv^n in, and continued the
time for doing so until this day.

My lords, that criminal prosecution is still

] in dependence against the prisoner. The diet
has not yet been deserted so far as I know.
I need not tell your lordships, that his
Majesty's Advocate cannot desert a prosecu-
tion, either eimplkiter or pro loco et tempore,
without the permission of your lordsnips.
Bf deserting nmplicifer, I mean here, deserting
with a view to try upon a new indictment for
the same crime.

.While the first prosecution was thus in
dependence, his Majesty's Advocate has
thought fit to eiecnte a second indictment
against mv client, calling him to answer at
your bar mr precisely the same crime as was
charged in the first mdictment. I submit to
your lordships, that this proceeding is alto-
gether incompetent — because the diet in the
first indictment is not yet deserted; and that
it would be equally incompetent to proceed
at present on the second inaictment, even if,
on the motion of the lord advocate, the first
should now be deserted. I shall state, in
veiy f^w words, the grounds upon which I
think our objection is irresistible.

It is known to your lordships, that by the
criminal law of this country, as now firmly
established, every person who is brought to
the bar upon a criminal charge ii entitled to
have the indneuBoi fifteen free da3rs. What
benefit could be derived from the indnda if
he eouid be brought to trial, and during the
dependence of that trial induda might be
running against- him all the while for another
trial on account of the same crime? Why, he
would be placed in a situation in which the
law certamly never meant him to be placed ;
he would be perplexed and embarrassed, by
being under the necessity of defending twp
actions subsisting together at one and the
same time. Observe how far this principle,
if once admitted would go. The prisoner is in«
dieted, he is brought to the bar, an objection
is stated to the relevancy of the indictment,
and 3rour lordships, after an argument of twelve
hours upon the relevancy, find the indictment
irrelevant. The next moment his Majesty^s
Advocate takes a new indictment out of his
pocket, and the prisoner is immediately put
again upon his trial for the very same offence.
Well, the second dav you have an argument
upon the rele?ancgr of this second indictment^
an argument which also lasts twelve hours;
and when that indictment is found irrelevant^
what happens next? A third indictment is
produced by his Majesty's Advocate, and he
msists that the prisoner shall again be tried.
And thus there might be fif&n different
indictments, under which the prisoner is ac*
tnally kept upon his trial for fifteen days,
being the whole mdueia contained in the first
indictment; and upon the sixteenth charge,
the panel might be brought to trial upon a
relevant indictment, and without having had
one moment's time to prepare his defence,

I may be told that this is stating an extreme
case, one which is not likely to happen. Such *
a case certainly may not happen while my

te»}

Jhir AimmimvHg mfa^j^ Ouihi.

A. D. 1817.

{»!<»

fiknd is loid adiocilo 9 bttt if whm I Iwi^
•tated ought happen in ao estpeme case, it 1%
WMMigb |br my ammeiit. Eveiy poisiUa
dttojger ol tkis koto ooght w lie guarded
agaiMt, ibr expeneDce'- .taaches w that cri-
niDa) pBOWMtttioDS are often reaoxted to Aom
ambition^ ittreDge, aad other impfoper mo-

Aa % geneial rale, therefore, in the. law of
SootkocC I affirm that if a peiaoa is indicted
%9K%. crime, aad if he oomea to the har, and
ple»ob JO that indictment, then there is » a de-
pending psooem apaioat him, imm^vahkk he
cattttbt again be cited tO'anawer Tor the fame
cikaige, aad in that way be deprived entirely
of ih« beneit of hii MiCht* Ine moment he
baa pleaded to hia indictment, it ia incompe-
tent to have another indictment running
aigainat him for the aame ofibnee.

There are variona waya in which I might

iilaatrate the haidihip aad oppieation which

wooUL reaolt Aom a difiereni mle. Sappoae

a pand faas-pleaded to an indictment and haa

been actually pot upon his trial here, if the

dfaiectton whidi' I. am now stating ia not a

good objection, his Mi^eat/s Advocate mi^

aaisa another indictment, reqoiring him to take

hia trial at a distance^ for instance' at Aher*

deen, the day after the diet of the first landict^

men^ whidi is to be tried at Edinburgh, and

ahat i» the vaiy purpose of d^eiting the fint

indirtmeat and paoceeding upon the second.

In thia veiy case it b pomible that the panel

any hare fifty .witnesses to examine, and of

eonrae he ia bound to have Ihem here to-day

in caaa the trial ahonld go on on the fonaer

indictmenl. Bnt if the fornier is deserted,

and a new one called at Aberdeen to-mortow,

ia what manner,! would ask,. is the paod to

tianapnrt his wime^aea toAberdeen? ThetadMr

cac an giren by law for the very purpose of

pwiferting the accused against surprises of dua

land; bnt the practice-alteBaipted on -the part

of the Oown would defeat that purpose.

It ia in .-vahi to aay that the Court would io-
tarfem to give ledieas, if an oppreasive pio-
needing oriha aataie I hare supposed were to
he attempled. Ihat plea was once uiged,
when a pioeecnter, inaefiaaoe of all law, had
jHt given the eadiaaiy iadbicHr, and I am sorry
to say, thai it was listaned to by the Conit.
The Kbel oonta^ied indbaur of twelve daya
on^; and .iribea <tbe panel eomplained, he
waa toldj th«t i£ he had applied to ^e Court
iw hngfar tiflM, it monld have been allowed.
The olgeetion was eocoidingly repelled, bnt,
aa lfe«ilume justly observes, it was most
improperly repelled^ 2f the ordinary rales of
JaWy aelded by the maclioe of centuries, are
4a be diapeaaed witn» and a priioner lotted
iDversipoathe.Cooit:foraadieaa, iaitreimagb
aaaaffithat.he .wsllobtain aaa favour wMt
ha in icatifled ito teiMd aa a right? If thia
be dia.eaae> .all lenuaty, all liberty ia at aa

Tins vmiaasaad very gmathardahipa would
mialt, if^paaems^ admit, thAt after a panoa
VOL, XXKIIL

hatii^MM to one erimjnal.prosec«^o, and
iwhi)e it is in dependence —for example, while
ixiformations are preparipg^ on the relevancy
«-4be tnduci^ of another prosecution for thf
same crime may be current.

I do not 9ay that the question .which I am
now stating. to your loidshipa has been de-
cided in (enganii l^ the jQQurL If it has so
been decided, it has escaped m obaeryation,
and the learned counsel upon the other side
,of the bar will mention the cases in jivhich the
objection has occurred, and has been repelled.
For any thing that I luiow, there may he in-
.atances of trials having proceeded on indict-
.ments raised in the same manner as the pre*
sent; but tfiat must have happened where the
objection waa not stated ; and you will ,easUy
see, that in many cases . it might be for the
interest of the panel to wave .the objection^
In many cases a prisoner would wi^h to be
tried, without Any indnKUBi for instance, in a
charge of a subordinate or inferior nature^
there may often be an interest on the part of
the prisoner to wave thU objection. But what
I found upon is thia, tht^ as foraa I have been
able to discover, this objection haa not been
stated and.repelled ia lenaiiai.

Bnt. though I cannot refer to a precedent in
which it haa been sustained, I think there has
been a case decided which apjpears to me te
proceed on the vmy same prmdple^ and to
jdlnatrate aad support the argument which I
■have now the honour to maintain. .There are
instances of hdf a do«en indictments having
been served upon a prisoner, one after anothea,
.and calling him to attend at the bar at diS-
•ferent times ; and, in particular, that' happen^
ed in the celebrated caae of colonel Francis
X^harteris. Four difierent libela were executed
.against 'him to take his trial for the same
eriine, all cdluig him to appear ia Court at
diffi»ei}t<tiniea; .and when he appeared upoa
the first of thesd indictaoeats, he stated that
•ha ^as act beand to plead at all, until the
4ord advocate selected the indictaftent upon
whtoh he intended to oarry oa the trial; and
ihe Court found,- or it was admitted on the peat
of the prosecution, that this was necessary^;
and accordingly, befoide the trial prooeeded,
it was necessasy to desert three of the indict
ments-»and when they wareao deseoted, then,
and not till then, vraa ooleael Charteria rch
quired 4o plead.

Is not that case precisely the same m trta-
(Buk as the present P For, if before colonel
Cnarteris pleaded, every indictment, then in
^dependence but one was necessarily deserted,
— ^now that my. client haa pleaded, there being
but one indictment when he pleaded, it fol-
iows for the same reason, that other three in-
dictaaenta cannot be hung over* his head. K
yon ,do not jupport this objection, you place
n^ dient in that situation in which it was
deoided that colond Charteria could not be
placad. If ooload Charteria had plead^lo
hia hrat indictment, while the others li^em in
snmense, he would have been in the siiuation

3071

57 GEORGE IIL

TrM of Wmam Edgar

[308

WUHam Bmmon^jom^^ Bonnytoun.
Jchn TVntter^ former at Stacks.
JMfft Toifhry rending at Blackness.
George iSiirviiuUy farmer at Northbank.

CUy of Edkiburgk,

Robert FroKTy jeweller in Edinburgh.
l%oma» BicharAony merchant»tailor there.
Damd WkiieknPy watch-maker there.
Peter FeddSe, tronk-maker there.
WiUiam Droiter, upholsterer there.
Aletutnder lUmtUf coadi-maker there.
John Inoerarity, upholsterer there.
Cfeorge Yule, merdiant there.
Alexander Aindie, saddler there.
John Sieelf confectionet there.
Jamee Iimet, gunsmith there.
Darnel Forreti, hosier there.
Peter Saweriy saddler there.
George ^mier^ mer^ant there.
WU&m Ron, tailor there.
Ckarlee WLun, draper there.
John Laingf saddler there.
John M^PiUroony tailor there.
Pnmdk Tknidaonj confectioner there.
WUUom Cooper^ boot>niaker there.
WUUam Dumbrecky hotel-keeper there.

ToumofLeith,

John M^Kennef merdiant in Leith.
Archibald Clegkomy com-merchani there.
Thinmt Morion^ slup-builder there.
Rohert$ Patereooy painter there.
C4aHSef Boberteon, merchant there.
John Sandertf a^nt there.
JMii- Cir/cweri wnght there.

Ad. Gillibs.

d. movtpbhmt.

David Dot7oia8.

Lord Jtatiee CfeHfe.--William Edgar, what
do you say to this indictment? — ^Are you
guilty or not guilty of the charges contained
mitr

WUlimn JS<(g)ar.— Not guilty, my Lord.

Mr. Gmmifotm.— The prisoner pleads to the
indictment which has just been read, I hare
to state to your lordships, that he is advised
to object to the competency of the present
proceeding ; and I humbly submit that this is
the proper time for stating «the objection to
. your lorafihips.

Your lordships will recollect that the pri-
soner at the bar was lately indicted upon the
statute the 52nd Geo. 3 , for the crime of ad-
ministering unlawfol oaths, binding, or pur-
porting or intending to bind, the takers to
commit die crime of treason. That indictment
was regularly served upon the prisoner — ^he
was brought to the bar — ^he pleaded not

Snilty — and your lordships, upon hearing a
ebate upon the relevancy, appointed infor*
mations to be giv^n in, and continued the
time for doing so until this day.
My lords, that criminal prosecution is still

in dependence against the prisoner. The diet
has not yet been deserted so for as I know.
I need not tell your lordships, that his
Majestjr's Advocate cannot desert a prosecu-
tion, either impHeUer or pro loco et tempore,
without the permission of your lord^ips.
Bf deserting emqUiciter, I mean here, deserting
with a view to try upon a new indictment for
the same crime.

.While the first prosecution was thus in
dependence, his Majesty's Advocate has
thought fit to eiecute a second indictment
against my client, calling him to answer at
your bar ror precisely the same crime as was
charged in the first mdictment. I submit to
your lordships, that this proceeding is alto-

S ether incompetent—- because the diet in the
rst indictment is not yet deserted ; and that
it would be equally incompetent to proceed
at present on the second inaictment, even if,
on the motion of the lord advocate, the first
should now be deserted. I shall state, in
very fow words, the grounds upon which I
think our olijection is irresistible.

It is known to your lordships, that by the
criminal law of this country, as now firmly
established, every person who is brought to
the bar upon a criminal charge is entitled to
have the mdueia of fifteen fi«e days. What
benefit could be derived from the indnda if
he could be brought to trial, and during the
dependency of that trial induda might be
running against him all the while for another
trial on account of the same crime? Why, be
would be placed in a situation in which the
law certainly never meant him to be placed ;
he would be perplexed and embarrassed, by
being under the necessity of defending twp
actions > subsisting together at one and the
same time. Observe how far this principle,
if once admitted would go. The prisoner is in«
dieted, he is brought to Uie bar, an objection
is stated to the nlevancy of the indictment,
and your lordships, after an argument of twdve
hottis upon the relevancy, find the indictment
irrelevant. The next moment his Majesty's
Advocate takes a new indictment out of his
pocket, and the prisoner is immediately put
again upon his trial for the very same offence.
Well, the second davyou have an argument
upon the rdevancy of this second indictment,
an argument which also lasts twelve hours;
and when that indictment is found irrelevant,
what happens next? A third indictment is
produoed by his M^esty's Advocate, and he
insists that the prisoner shall again be tried.
And thus there might be fifteen different
indictments, under which the prisoner is ac-
tually kept upon his trial for fifteen days,
being the whole mdueia contained in the -first
indictment; and upon the sixteenth charge,
the panel might be brought to trial upon a
relevant indictment, and without having had
one moment^i time to prepare his defence.

I may be told that this is stating an extreme ^
case, one whidi is not likely to happen. Such '
a case certainly may not happen while my

imi

Jar^dminktm^mtlai^fii^Ottihs.

A. D. 1817.

ino

fiind is loi4 ad»acM«> bat if whit I buiit
•Urted might happen jn »d eztreine cue, ft j»
«ooagk Ck my tmmeoL £vecy possiUe
dttoger «P tNs k«ia ought ta be guarded
agaiiM^ Ibr experience teaches us that cri-
naipal pwocatioM are often reaoctc^ to from
ii]Bbiilie% lereage^ and other impioper mo-

i^f genenl rale, therefore, in the law of
Scettonn, I aflirm that if a penon is indicted
te« crime, aad if be comes lo the bar, and
pleads pi> that indictment, then there is. a de-
pending pmess apinst him, dttrmgfohick he
caanbt again be cited tO'answer for the same
dwcge, and in that way be deprived entirely
of «k« benefit of his imdmitr* llie mosBent he
bas pleaded to hia indictment, it. is incompe-
tent to hara another indictment running
ugainst him for the same ofihnee.

There are various ways iu which I might
illnstcate the haidship and oppression which
mntUL result fyua a diffurent role. Suppose
« pansl haS'pleaded to aa indictmeai^ and has
been actnsjfy pot upon his trial here, if the
ohyeetion w]i<& I. am now stating is not a
g«M>d objection, hie Maiest/s Advocate might
taiae anolhec indictment, requiring him to take
fcia trial at a distance/^ for instance* at Aber*
deen, the day after the diet of the first rsodict-
nent, whidi is to be tried at Edinboigh, and
that iar the very purpose of d^erting the first
indictq^ent and proceeding upon the second.
In tins very case it is posaible that the pend
wmj have fifty witnesses to examine, and of
coarse he is bound to have them here to-day
in casa thetiial should go on on the former
iadietmem. But if the Ibrmer is deserted,
and a aew one called at Aberdeen to-mortoWy
ia what asanner, I would ask, ,is the psn^ to
twiwport his witnesses toiAherdeen? Thetnda-
csa are given by law for the very purpose of
pwilsctiiig the accnsed against surprises of this
Bad; but the practicealteaspted on -the part
of the Orovin would defeat that purpose.

It is in vain ta say that the Court would ia-
terfssa to give ledressy if an oppressive pro-
cseding otibt aatnie I have supposed were to
be attempted. That plea was once umd,
when a prosoctttor, in oefiance of alt law, had
asS given the OB^bosKry ts^b^, and X am sony
so say, that it was bstened to by the Court.
The libel oonta^ied Mmm of twdve days
oofy; and .wbeft <the panel oomplained, be
w« told, thai i£ he had applied to the Court
iw hmgnr time, it would have been allowed.
The olgeetioB was aocoidinf^y repelled^ hut,
as Mr. Home jastly observes, it was most
amfioperly vq^elled^ l£ the ordinary rules of
J»r,. settled by the McUce of centuries, are
40 he di^MOsed wtin» and a prisoner loUed
0v«rsifMmlha.Couit>lQrsadiess« isk^enough
Snsay».tbii<be .will obtain as a fasoufv wlMt
bs is jeslsied ito dbsiasd as a tight? If thi»:
be Sl»><s0e, all ssttarily, M liberty is at an

Thus irasiMssjaod very gwathardshipt would
aHult, if 9#B' ones edmit| Ihat after.a pssaon
VOL. XXXIII,

}^,p|Mded to one «rinunal.pn)siicaJ;iQO, aad
iwldle it is in dependence —for example, while
iqformf^ns are prepariiig on tha relevancy
^Hthe tffduM of anodier prosecution for th^
samjB crime may he current.

I do not say that the question .which I am
now stating to your lorj^ships has been da-
cided ia tenmm by the jQcturt. If it has S9
been decided, it has escaped my observatioo,
and the learned counsel upon the other side
,of the bar wiU mention the cases in ;which the
objection has occurred, and has been repelled,
•for any thing. that I know, there may be in-
.stanoes of trials having proceeded on indict-
.ments raised in the same manner as the pre-
sent; but that must have hapnened where the
x>bjeotion was not stated ; ana you will .easily
see, that in many cases it might be for the
interest of the panel to wave .the objection^
Jn many cases a {prisoner would wi^h to be
tried, without any imdmrni foripstanoe, in a
ohaige of a subordinate or inferior nature^
there may often b^ an interest on the part of
the prisoner to jwave thi^ olgection. But what
I found upon is this, that, as far as I have been
able todiaco^»r> this objection has not been
stated and.reptiAed m krmim.

But though I cannot refer to a precedent in
which it faaa been sustained, I think there has
been a case deoided which appears to me ta
proceed on the very same prmciple, .and to
dhistrate aad support the argument which I
have now the honour to maintain. ,There are
instances of hadf a do^en indictments having
been served upon a prisoner^ one after aaothes^
,and calling him to attend at the bar at diS>
•ferent times ; and, in particular, that' happen«>
ed in the celebrated case of colonel Francis
Charteris. Four difierent libels were executed
, against him to take his trial for the same
teiine, all cdling him to appear ia Court at
diflfasei^t (times; .and wben be appeared upon
the first of tbes^ indictments, be stated that
■he ivas not bound to plead at all, until the
Jord advocate selected the indictment upon
whioh he intended ta cany ea the trial; and
Ihe Court found, or it was admitted oa the past
of the prosecution, that this was necessary^;
and accordingly, bsfoSe the trial proceeded,
it was necessacy to desert three of ihe indicW
ments— and when they weteap descEted, then,
and not till then, was oolosiel Charteris ra«
quired to plead.

Is not that case precisely the same m irta-
(BnU as the present? For, if before colonel
Charteris pleaded, every indictment then in
dependence but one was necessarily deserted,
— ^now that my client has pleaded, there being
but one indictment when he pleaded, it fid-
lows fi>r ihe same reason, that other three in-
dictments cannot be hung over* his head. H
you do not support this objection, you place
n^ client in that situation in which it was
decided that edonel Charteris could not be
.placed. If cokmd Charteris had plead^ to
Us first indictment, while the others were in
snsnensei hawooid have been in the situatuui

«lll m GiSOttGE III.

in wliich it is wished to p1ac« n^rdient «t
wesent. The principle of the rule in'cokmel
Charteris's case is so wdl laid down by the
learned author of the Commentariesy that I
cannot refrain from stating it in his words. In
Hie 4th iroU of Mr. Hume's works, or' the 2nd
▼ol. upon the Law of SobHand, as to the ttkA
ef Cnmes, page 34, after haTing* first stated
tiiat the Court erroneously and improperty, in
two preceding cases, had repelled that objec-
tion, he proceeds to stale die case of Ghsrteris,
^ On the one* hand, the prosecutor cannot say,
that he is hardly dealt wiUi in being put to
make his choice among his scTeral libels,
whereof some* one at least ongfat td be correct,
and executed in proper form. On tile either
hand, tiie panel snifiBrs a disadTantage in con-
ducting bts defence, unless snch an ellsotion
shall be made. For there may be blunders in
the body of one of those Ubeis, or in the Kst
of witnesses, or in the manner of exeoudon
against the panel or witnesses, which may be
more or less a^ailaUe to him,^aiid may, perhaps,
aerye to his acquittal, if the prosecutor insist
ezclusiTclyon mat one. Whereas, aocoiding
to the latitude allowed in Lindsay's oas^ even
after making good such objections, the panel
in nowise profits bv his success therein, and is
dius perplexed and encumbered with die care
«f a double set of pleas. I learn from a
printed petition and answers (lor ther are not
m the record), that' in the case of colonel
Charteris, the panel had been serred with no
fewer than four libels, calling him to several
4iets, and o^erwise differing one from ano-
ther; and of this proceeding he compliiitts,
•ad insists that the proseentor shall specify the
dittay on whidi he intends to go to trial. The
prosecutor does so accordingly, in his answers
to the petition ; and it appear» from the infor-
mations in the ease, that the colonel nerer had
to plead to any of those libels but one, which
alone appears in the record.^

You therefore see, that before coloneV Ghar-
teiis would open his mouth upon that indict-
ment, he was entitled to have every cither ia^
dictment for ^ same crime pat out of the

Trial^WiOiamtd^

(fflS

tiie lord advocate has followed a diiennt
eourse here, for he first caiied one indidment,
to which the panel pleaded ; and after your
lordshifM had ordered informations,. therebY
continuing the dependence of the trial, whidi
at Ibis very moment has not been deserted^— I
say pending Ifcat process to whidi the prboner
pleaded, he has been dtedliy another indict-
ment, which is also now otet ms Wad; and he,
nnd his counsel if they have dene th^ir duty,
have been encumbered and peiplesed fiftiseh
days in attending to different set»of pleas^ in
these prosecutions. If the objection in the
ease or colonel Charteris was sustained, yeo
•uffht to sustain the olijection in thisuaie a|po.

It majr perhaps be maintained, but there is
no prindple to bear out the statement, that the
second indictment, ▼irtuaUy'iihports an aban-
donment jof the fimtindictimeiit. Anindictment

mi^ be abandoned before the panetis-Mought
into court and pleads: The lord advocate mi^
bring twenty indictments ; but before bringing
tiie panel to plead, he most desert all- of then
but one. And I ask. Can won case be pointed
out to me, of three or four itfdictasents brought
against an individual, and of hi» being brought
to trial, not upon the last, but on the fiitt ef
these iuiftctments^ The prindpto ia^ tfaa^
where several have been served upon a paae^
the seeobd is understood to be a virtaal desbr&
tion of the first, the third of the second, and s«
forth. The prisoner is always entitled to plead
to one only, and that is always the last. But
tiie prindple by which » subsequent indictment
is held to imply an abandonment of a foriMr
indictment, cannot apply in the <saie befoi<a
us ; for the moment that issoeis jeined betwees
the prosecutor and the pttad, it is no longer in
t&e power of the public pieseMtor to abandon
the indictment, unlesshe db if for ever. Wheii
the prisoner has pleaded to* an iifdictment, ke
is then m mmitm m^ and ^ prasecnlov
must have the express sanction of the Court
for the deserting of the libd. This ift laid dnwa
in so'many words by the learned Commenlntor
at the 38th page of the volume already men-
tiened : ''^It is also a case which sometiinea-
happens, that,, thbogh still-resolved on bringi^
the pand to justice,, the presecutor sees canee^
however, not to insist in thetrid of him on
that particular libel Because, periiaps, be has
discovered some flaw in it, or the exeentioii»
thereof; or on account of new and material
evidenoe whidi has latdy come to 4iii know-
ledge; and whidi requires an addition-to his
list of witaesses, or may occasion ai difeunca
in the laying of his charge. In dtuaiioaaof
this sort, whtdi, notwithstanding all due ^wm
on the prosectttor^s part,' must sometimes
happen>' it is necessary to»tbe advancement of
justice,tfaat he have the power of desertine hia
present libel, without prsjodiee to bis lignt cC
insisting anew, at the time, and in the foim^
which he shall find' advisable'. U indeed be
had the absolute and uncontrolled privilegn ef
throwing up h]s> process as often, and ft>r what
causes soever he ideased ; this would be dan-
gerous to the panel, who might thus, under fldae
or alfoeted pretences, be hanased #ith repeatsd
libds. Our custom does not therdbre trust
the piniecutor to*diat extent^ but ifflows hiak
only to move ih» court,, to desert the d»t pre
Isss €i Umfore; in which request thiif ifiny
refiisfr to gratify him, if diejf see cause to hi-
lievethat he* intends any thing' oppreisivu or
improper, or if thcrjr are not satisfied that there
aro good reasons fiMrsuch an indidgence. It is
true, the- stjple has crept into piMtioB, of M
pviseafor merUng the diet; because it' ee
often happens that his motion finr such a
purpose IS sueoessftil. But in tnlth this is a
tebse and inaccurate exprenion. For die aiet
of desertion is^not his act, but timt of the Court;
without whose permission and ddivesanoe'tlie
process cannot be withdrawn in'this tempomry
wm. And^ indiMd>'il he be ft private fafmh

9131

Jfer jiimMitJimg unlan^ld Oaiis*

A.D. 18)1

[S14

^tttoTirteiCftwl Iwfe 4rii«Bd7«i«tiQo ten him ^
to itMiAt •■ Uiat Ubd; and to this thej maj
hold him, and refuM to gire him new letten,
if ihey tee cbom. Aooordingljry in the debate

on the caee of Aftehihakl (Maich 1, 1768X the
pioaecnlin Ixai^fydiapwna all pretenmns to
9f^f such fibitrary. power. Hie mi|jes^f so-
lictor vqireacntSy that he obsenreB in the infor-
laatinnj on the part of the pand, Tery alanning
oonaecpMnoes are endeavoured to be grafted on
1^ doetaae |)led in behalf of the protecttior in
4ue amt a» if it gare to the pnblie proseealoff
a.fefy aMtraiy pofper^ f^preiiing 4he enb*
jeets in this oovmtiyy by deaerting 4lieli ai often
aahiateicyaiggested^ bntns aU the alarming
cpoaeyiencet pointed out are founded iq>on
the aiqppoaition of a doctrine which ike never
ilMnnft to plead, he thinks it now proper to
liavo this matter cka^y undemtood; as the
mtblie pfosecntor nerer pleaded, nor does he
desire it to be beUoTed by the suljeets in this
oooBtiy, thai he has anv arbitrary power of
deseitanf diets wilbout the anthonty, and in*
tervestioa of Court: which daeumstanoe to-
tal^ removes all those apprehensions which the
couBsd for the panel has grafted upon the sup-
poaitioo, that an arbitrary |>ower of deserting
3%Bla wan claimed in this, or in anj other cause.
by the public prosecator.*' And it is stated
in still stronger terms in his notes asto de-

rcthis were an open petntt I.«annot hesitate
for a toement to betiefe^ lh«t your lordships
wonld decide it in the manner which I now
suggest; 'for the hardships which would arise
foam imar other decision are plain and great.
Bnt I anbmit that it is not open; for diough it
waan^decided ta ienmnii in the case of colonel
<^nrleris, the objection, theroi maintained is
fmctlT die same in principle* Upon these
ffoanof I bnmbly submit to your lordships^
lliat the objection which I haie stated is well

I think I have already observed, that the
mistake cannot be rectified by the public pro-
seentor deserting the former prosecution at
this stagiB of the businem. The reason is, that
the panel has already jiufiered all the perplexity
and embaifamment which two co«exj8ting pro-
secutions for the same crime must necessarily
eecaaion ; and he has in consequence been de-
prived of the benefit of his mduda. Both in-
dietmeats h^ve been suspended over his head ;
and lihe desertion of the first now at the veiy
hoor of trial, will never authorize you to pro-
ceed vridi ihe second. To what hardship was
colmri Charteris exposed in going to trial upon
indictment, white others were hanging over
head, to whid> the prisoner is not exoosed
in the piesent case ? Uolon^l Charteris anew
well, tnat if he was once sent to a jury in one
indictment, thu rest were for ever at an end.
Bat the,Court'|hought,'that he was not bound
ssi^i tc-mkad with four indiotments hanging over
him; that Jie was apt bound to take his chai^ce of
tlm Ktetu^y b«ii^i|iyti«d tP^Qoe of these, pro-

aeentionsy and the verdict retuned in another.
You wonld not force him into the preUminatr
step of pleading and arguing the relevancy until
evwy indictment but one was withdmwn. Now,
I beg leave to ask the onestion where is the dif-
forence between pleading to one indictment,
and having other three afterwards served, or
having all the four served, and being compelled
to plead to one ? In the first case, j[ust as mudi
as m the second, the four prosecntions are co-
existent, and that is the hardship a>mplained
of* The prosecutor has placed my client
in the emysame predicament in which yon
found eokmel Charteris could not be plaosd.

I maintain, therefore, that the second in-
dictnient vras served enoneoudy, beoanse it
was served while the prisoner was under trial
for the crime charged in that indictment. For
it cannot be disputed, ttmt the prisoner u under
trial from the moment that he pleads, althougji,
according to our forms, the jiuy have not then
entemd ujpon their functions.

Now, if a prisoner can be brought again and
again to trial for the same crime, — and he may
be brought twenty times to trial for the same
crime, while the act 1701 is suspended, as it is
at present,— it is but fiur that he should have
fifteen free days between each of these trials ;
namely, the ordinary indMcim of the law.

If you once admit the princijde on which the
lord advocate proceeds, you might have these
twenty trials goin^ on for twenty consecutive
days, without respite either to the prisoner or
to vourselvea. I beg to ask. If this would not
only be to harass and perplex him, but to deprive
him altoaether of the oenefit of his inducia?
Could fifteen days so spent be called fifteen
days allowed for preparation F The prisoner
would be perfectly confounded, not knowing
upon what day, or under what indictmeiit, ha
was to be sent to the jury.

I humbly submit, therefore, that the poipt is
clear and established in principle, that the ta-
ducU of no one indictment can run, even after
the prisoner has jdeaded to another indictment
for the same crime, consequently, although
your lordships were to allow the lord advocate
to desert the first indictment, that the prisoner,
not havins had his tadacios under the second^ is
not bound to plead to it.

Mc HiMne Drummandi^l do not think that
it is necessary for me to say much in answer 1^
this objection, as the point has been settled in
practice long ago. , The whole question in dis-
cussion here seems to be, whether it is neces-
mry now for the prosecutor to pass expressly
from the other indictment, or whether it is
already virtually JMssed from? The learned
gentleman was quite incorrect in speaking of
ue prosecutor 'deserting the indictment,**
instead of '< passing" from it ; as it is not the
mdietmait which is said to be deserted, but the
dki and besides,, the desertion is not the act
of the prosecutor, but of the Court. If the
diet were to be deserted, there mi^t be a
doubt whether both indictments would not

th^r^jrb^ ^tfnguished, as the diet «f bolfl
happens to fall on the same day. Fuifber thta
fhis, the prosecutor can have no interest hi ob-
jecting to any mode of eztingnishrng the irst
lA>el. He could hare no other mothre in nbt
having recourse t6 the Ibrm of moring the
Court to desert the diet; and he conceived
that he was following a simpler course,
and one less calculated to create trouble and'
Aehy.

I happen to have loioied into the practice ef
late years as to the point in question, and I
naintainy that the proceeding in tMs case afe
agreeable to the practice which your lotdsUps
have sanctioned and shall mention iht cases
that have occurred. lindsay Crawford was in*
dieted to stand trial on the 9m of Januaiy ldl3.
The diet was continued, on the motion of his
own counsel, to the 3rd of February; before
which 3rd of February new criminal letters
#ere raised against the panel ; and the trial
proceeded on the criminal letters, without any
notice being taken of the first indictment,
though the trial on the criminal letters took
place on the same day^ the 8rd of February.

Mr. Mum^, — ^Had he pleaded ?

Mr. Drumntond. — He had not. He had come
into court, and the diet was continued upon
the motion of his own counsel. It is of no
consequence to the principle of tlie objection
whether the panel pleaded to the indictment or
not ; but, at all Events, there are cases enough
where this proceeding has taken place after
panels have pleaded.

The veiy next case, that of lliomas Somet^'
▼ille, was one of that description. He was in-
dicted to stand trial on the 25th of January
1813. On that day a long pleadiag took place
iipon the relevancy; conseqqetitly he did plead
to the indictment. There cojiifd iiot have been
d debate, If he had not pleaded not guilty.
Informations 'on the relevancy were ordered to
be given in on the 15th of February; and be-
fore that time, new criminal letters were raised
which fell upon the same day, the 15th of
February. I took a note at the time of a con-
versation on the bench as to the particular ob-
jection which has now been stated, and which
I beg leave to read, i see two gentlemen on
the other side of the bar, who can correct jne
if I am inaccurate, who I remember to have
f een counsel in that cause. *^ Lord Hermand
asked, if it was not proper in such a case to
desert former diet pro loco et tempore ?— Ob-
jected, That former indictment abandoned by
service of this. And Court said they would
adhere to the practice, and cate proceeded" I
had added this remark to the note ; ''Had not
the diet fallen upon the same day, it would
have dropped out of the record, by the passing
of. the day without its being called.'^ Now,
can the prosecutor be compelled to .appear or
insist in any hbel he does not choose to insist
in f and if not, must not the diet fall and be
dropt for want of aa instance ?
' VpCB d)« 13th of Jane 1814; Johntfom

TrM of fymm Edgar

C216

wtti brought fothebaronachHrga^ffohnQiy.
Pleadings at great length took place cia the
relevancy of the iadictisent, the pand bavivje
pleaded not guilty. Infonoatioiia were CfdereS
to be given in on the 8di of Jaly, and aiaiaar
proceedings took place. Before that day m
new indictment had been served, Ae diet
whereof fell upon an earlier day, aild wpom
that day informationB wer^ ofdered of iieia
upon the new iadictment.

Jhett was also the leeent eaaeof lbs TiMstle
Bank of Glasgow against Befli and DMgla*^
After the panel Dcwglas had pleaded g^fty,
informations were oideied^ aan a new indiot-
ment was, in the mean time, served upon ^m
panel, which was understood, as is the Ibi
cases, to have eattfaiguiahedthe first.

These are all the cases since 1811, iik
it was possible for this olje^etion t* eicoiir;-
and the same practice took place h^ a& of
them that has been followed here, whicb eoaki
not have happened if this objectioB had been'
wMl founded. The plea of its having pasMd
luff tUetUio cannot be maintained, as it is Iha^*
daiy of die Court to see that eve^ thing shidl*

So on according to the proper forms of hnr, a-
uty which the Court at all times disdiarge^
whetlier the panel's couiisel think it totMr
fnterest to state objectiona or not. A stroa|;ar
example of this cannot be' ^en 4ian &tt
very case of Douglaa, Where tibe Ceait etrdered
informations on the relevancy of an faidict-^
ment to which the panel had pEl^aded ndlty.

The embarrassment of the panel witn dilpei^
ent libels, and the other evils coMphoned e^'
are entirely imaginary. The service of ^ ttdr
indictment, or at least the eidlitig of the diet,-
extinguishes the old one ; ahd th^ is my^Ub^
sistincr indictment but ^ last obe' widdi i^
served on the panel. If any diet were to bef
deserted at all, it would be the diet of tto
last, as no notice could be taken of thefint*
If, however, your lordships dioold have am
dpubt upon the subject, the prosecutor wm
pass from the indictment, or will- move for a
desertion, or follow any coune that tho Cowt
ffiay think best calculated to put an end to Ae
first indictment, if its existence shotild still bo
thought possible. He has no wish to maintais
any argument on the subject ; only it is Ma opi<*
nion, that by the service of a second indiet*
ment he has abandoned and virtually pa»ed
ft-om and extinguished the first.

Lord Advocate. — ^After the statement wfadcli
has been giveii by Mr. Dmmmond, I do not
mean to detain you by entering into a qoe^
tion, which I understand to be shut hytiie
uniform practice of your lordships. Bat I
think it necessary to advert to one point hi
ttf r. Cranstoun's speech. He stated, that^ finr
some time past, the cotin^ i(k Ihe panel bad
ihought it incumbent on them to attend, not
only to this indictment, but also to Ihe last, in
which informations n^re ordered on the rke-
vancy. He ought to have stated-^-and aa I
know his ftdmess, I think it mast have boett
byaimssioil ttiat he did iiautate«**aurt alN

ivn

Jbr Mmiiith0Uig udm^ OaOu.

A, n, 1«(%

\m»

ita» & nondl befiie tlv paid iNte Mrred ^mdi
i^iA indietamty notioe was givoi to his ooantel
\ff liiwtf, tiitt it was BOt intended MrpiDMeate
lk« fittC iddietfliaat, but to sarfe mib with
aaMhetf. I tfaink it fleoettary, i« vindieatioi^
«f tlM pablio ptoaecntor^ to aiatn this to your
lonlsiups> u it ahawa there was no hitei^aD
in oppms th9 panel, av to give hiacouiael
«nf naediaw tronhla^

Ob the point iisal^ I sfHe la yon, lini net
onlf since 181S hit this point bean nndemot>d
toh^ahtit, but in «U the caaea before, this was
Aanniftmnpnotiae. lathecaaaof Mendhaniy
there waa » iMig avfoaaent whether tiie^iaBaing
af- notes in Eof^and oould be ataled in this
Govt, on the gionnd of the crfme in the one
ootmtiji being a ootttbstiation of the orime
<BuiBiitted in the dtiiCT. After the panel
niairifri upon that« i«lbtttationa taese drdefed^
It was dien thought the better tiode of pao-*
cneding to abandon that iadiettnent^ ana to
give n new one, whidi was detia while ialbf^
naadena weita in depend^nee; and in that
cnaei where it ia hnown to jtxM loxdidnp that
9iwtf attempt was made to safe the individnal
Aen at tho bar, this point was tmdecstood to
be shut.

• The Mittt jnst comes to this, that, where
Ae pnbOe proaecntor has ndsed an indicCment,
it is competent fo him, antecedent to pleading
Mbre a Jnty, to abandon the indictment and
las^ a second. It appears to me that the
dicnmstanoe of a pleading on the relevancy
httittg tdcen phboe, cannot prerent the public
pt^asecoior frmn abandoning the indictment
vriien be thinks fit, and bringing a new indict*
inent. liddng both the principle and invalria-
Me pthdtice into Tiew, there cannot be a donbt
111 the caaoi In sappcH of what was stated
hj^ Mr* DtttniflAond, the oise of colonel
Chhtteris is in p6iht. If It bad not been held
Aaft Ae kM ifldictmtot waa a Viiaaa^pahaing
fiom the Ibrmer oaesy all of them wontd ha^e
appeaared tm th^ recMk Bat he^e it oAly on#
tipon tlie r^rdi tlierfefbre the service of th#
aecoiid wai a virtnal abandemnent cf the first.
Upon thefee gkmnds, I hat^e no doabt of the
«eBipetency cf the proceeding in this aaae^

Mr. Gferit— If the objection stated by Mr.
GraAat^uh has any solidity ih it, I am sure no
^aod anawer has been givett-to it on the other
sid^ of the bar, and indeed no answer at all.
Ihe tewned gentlemen were pleased to talk
of a pfMtiee since lbl3, of which they have
shown yoor lordships no te06rd ; aind one of
fSueub talks of a case brought into Court a
nanber nf yeata ago, in whidi^ he sliyBi a fiMt
iadictmettt waa abandoned, and a tcoond
aefved oA the panel, upon wlikft sec(yhd In^
dicttncBt the trial proceeded. As t6 Ae-ch^
camstatwpes of tfiai case, we have Ih^ aofbority
of m learned firiend, which li, Kvo d<MiM,
feonaiderable; but it is not an authority upoti
which, in duty to my client, I am bound to
^kfi And to What dothesfeicaset amount after
^ak Jasl to ttit^ Ihtt the pabfH tUkMred hiai^

selfio bh Med npoit a
out makiag any obyectioik to it« It is very
eaay to aooaiiDi for all dMoe caaes. H vat^
freqiaentfy happem^, that it woald not avail
a panel to have his triat pat off— 4ia ia prapaaad
to meet it, and his oomtsd beina laadhr, ha
Would not wish to pot off the tnal, or ineur
any farther delay.

We, who are ooanael in this ease, consaHed
topether whether it waa worth while to ataia
thia ohjectton, aa it trauld menty lead to
dah^. Dating eae period of the coaaaltalieiB
I waa of cpiBion, that it waa not worth whila
to sute the c«f^ection, being all tha whOa
aatiafi^ it waa a good sAiieoitQn. What I hara
said is aaffidaat to aaeoaat far all tfaa'casaa
which have been cited, even auppeaing they
wane ataled accatately. In geneial, I may
observe this, that it eHea happena ia eaaca
tfemips^befoiatfars Coatt^ that tha gtntiemen
who attend for the panel tea better aanmiated
with civil, than with crimiaal trials. Sudi an
objection as wa now. maintain would very
possibly not have occurred to m«. But it
stands on the ground of authority and of
principle, and it tbast ba considered well
fbunded. Upon what is it founded f JWaf,
It is positively laid down bvMr. Hume, who
mentions his authorities, ana he himself is &
great authority, that the prosecutor, pubUo or
private, cannot abandon his indictment after
the relevancy is pleaded to. He has no right
to give it up. He has no more right than any
other litigant has to give up any case without
the leave of the Court I apprehend yoa
cannot reasonably have any doaot as to uiia
point, that no ^iroaecutor • can of his own au-
thority desert the diet, or abandon the libel, or
prevent the Court from discutting that libel.
The matter must be judged of by the Court.
This is expressly laid down by Mr. Hume,
and I am surprised my learned friend should
use his own authority against Mr. Hume's au-
thority, without offering any argument upoa
the sulriect. '^ It is also a Case which some-
times happens,'' says Mr. Hume,*^ ^that
though still resolved on bringing the panel to
Justice, the prosecntor sees eaase^ however,
not \^ insist on the trial of him on that parti*'^^
cular libels Because, peihaps, he has diseo-
vered some fiaw in it, or the executions thdrao^
or on account of new and mateiial' evidence
which has lately eome to his knowledge, and
which requires an addition t<^ his list of wit-
nesses, or may occasion a difference in the
laying of his charge. In situation« of thia
soFt, which, notwitlMtanding all due petns en
the prosecutor's pai^ must sometiaafts> happen.
It is necessary to- the advancement of JuMiee
that he have thefiower ^ofdesertinghia present
Ubel, Withoat f>i«|ttdlee to his right oC insisting
anew at the time, and la the form which k«
shall find advisaUa* if, indeed> he had the
absohrte and uncdnttfolled privilege of throw-
ing up his process aa often, and Ibr what

«M«*MMMfri|«i|**M»'^«l— i*^hM

* »«l>i^<i<*#<Mi

% S-Tr* :|» Gr.l8»

aifi] 57 0BO«3£ Ifl.

iMUi9efl.«o«f tt h% 'plwsedy tiii» wooid be d«ii-
gerous to the panel, who might thus, uider
nlio or afieeted prelenoesy be berawcd with
lepeeted libels. Our . iciutom does not, there-
m% trust the prosecaCor to that extent, but
atfows him onlj to more the Court to desert
the 4iet jptm hco. et tmfurt; in which request
they may refose to gratify him, if they see
cause to beUeve that he intends any thing
•pfureiaiTe or inqiroper, or if they are not
satisfied that there are good reasons lor such
an indulgence. It is true the style has .crept
iBle practice, of. the pmsecutor deserting the
4iet, because it so often happens that his mo*
lion for such a purpose is suocessf uL But in
truth this is a loose and inaocucMe expression:
Ibr the act of desertiop is not lus act, but that
^ the Court, without whose permission and
4eliferance the process cannot be withdrawn
in this, tempoiaiy form.'' There is a great
4eal moreto the same eflfoct.

Lord GUSm, — Mr. Drummond says this is
not a desertion of the diet, but an abandon-
ment of the indictment.

Mr. €Mk.— It is clear that the whole of tins
passage applies to the case now before the
Court. . I shall put this case to your lordships.
Suppose that a libel is served on a panel with
St list of .witnesses annexed, that the panel
ob|edts to the relevancy, that the Court takes
the libel into constdeiatioo, and that, in the
courM of the aigument, the prosecutor disco-
Ten he could strengthen his ceie by throwing
lup' that libel. Sumrase that he therefore
brings a new libel with a nfw list of witnesses :
May not the panel reasonably object, I have
disclosed my witnesses in pleading to the foi^
mer libel, and therdbre it is improper that the
prosecutor should have power to throw up the
former and bring a new libel accusing me for
Cha same crime?

What Mr. Hume says is, that the Court
may allow the prosecutor to throw up, or de-
sert his libel, but that he cannot dp so without
leave of the Court. Were the prosecutor to
be allowed of himself to desert his indictment
^d bring a new one, he might make such im
attack -on the prisoner, as the prisoner might
.find diiBcttlty to perry. That would be a
.hardship on the prisoner, and one produced
partly by the discussion on the first indict-
jnent. And if the first indictment were to
-bediscussed, and the panel to be tried on it,
the case mif^t be such, or the verjr evidence
such, as to entitle him to an absolvitor. That
is an important consideration. The authori|ies
.are clear with me. The proeeoator of himedf
•hes no right to throw up his lib^ after it has
been pleaded to. ^The act of desertion it
not htt act, but that of the Court, without,
wlupse permission and deliverance the process
cannot oe withdrawn in this temporary form.''
. A private prosecutor must give caution to
.insist in his VAifX ** Indeed if he be a private
prosecutor, the Court have already caution
trom him U> insif t on tba^ libel| and to this

TM^WiUUm S4g§f

\a»

they may h^ him and. lefae. to. oife m^
letters if they see cause. According^, , in the
debate in the case of Aichibald, the proeeoutor
innkly disown* all pretensions to any saidi
arbitrary power. His migesty's solicitor ^
presents, — that he observes, in the informatioB
on the part of the panel, very alarming coitse-

Snenoes are eadeavouied to be.grafled on the
octrine pled in behalf of the prooecator ia
this case, as if it gave to tkie public piosecutor
a very sirbitrary power of Mpressittg the sub-
jects in this country, by aesertiiig diets as
often as his (aney euggested. But as all tihe
alanning consequences pointed outare founded
upon the supposition of a doctrine vduch. he
never meant to plead, he thinks it now proper
to have this matter clearly understood^ as the

Sublic pROsecutor never pleaded, nor doee be
esire it to .be b^eved by the sul^ects in this
countij, that he has any arbitmry power, of
deserting diets without the au^rity and in^
tervention of the Court; wh^ circumstavpe
tota^y removes all those apprehensions yrhkfk
the counsel for the panel has grafted npoq the
supposition that anarbatrair power of deserW
ing diets was claimed in thi^ or in way otbee
case bv the public prosecutor.''

Beaily, my lord, after reading that Mssage^
and the whole of the passages in M^ Humei
I submit that it is quite idle to maintaiu that
the public prosecutor has it in his power in idl
cases to desert his libel, and throw up his pn^
cess. He mav do so before the panel bsa
pleaded ; but the moment the panel has joined
issue with him, thfen the pleasure of the Court
must be taken as to a new trial.

The assertion if manifestlv groundless tbae
the. public prosecutor may abudpn an indipt^
ment after it has been pleaded to, and briiOg a
new indictment Before such pleading lie
may execute a new indictment, which is undof-
stood as an abandonment of the dd. But it
is contrary to principle and authority to sim-
pose, that, after a panel has pleeded, the
prosecutor may throw up his UM, and haTe
lecourse to a new indictment. He slay be
compelled to discuss the libel to which die
panel has pleaded. If it be thrown out upon
the relevancy, the prosecutor may bring for-
ward a new indictment. But suppose (hat it
is not thrown out upon the relevancy, that the
case comes tp. trial, and that the pen^ obti^
an aktoMbor upon that trial, the prosecutor
caunot bring a new trial for the onence there
chaiged. Therefore, I say thai the public
prosecutor has up njgai^ without the au$liorihr
of the Court, to abandon this indictment; aiia
although he has taken upon himself to execute
a new indictment, he cannot abandon .the old
indictment vrithout the authority of tl^ Court.
If this proposition is true, the public pro-
secutor must do something more, or you n^ist
do something more for him,, before he is enti-
tled to proceed on the indictment before your
lordships.

As to the case of colonel Charteris, we are
Ipld ip answer, |bat for some tiniB pMl it l|ee

snl

Jw MmkuHeriKg unttimflit'Oatht,

A. a mr.'

Xft3S

be^a tile' pnbetite -tbr the public pfosecator to
wSbmoAim a fint iodktBicnt, without tadcin| any
notice of it to the Coitrt at all, but metetj by
execalini^ a new iadictiiient. The panel ma^
BO doabt be tried on this new indictment, if
he is 'more elrftid of the old than the new one.
But whenever the point of objection is stated,
JOG nnist go back to the principles and jndg-
lAentii of yoor loidAips in parallel cases ; and
upon these it is dear, that till the pdblic pro^
aecvtw gets thr first indictment oat of hk
w^y, which he has not yet done, he cannot
pvoceed on the second.

If he ihodd move to desert the diet n'syfi
cKer on the fint libel, which he may do, liie
«pieslion will be. Whether he is entitled to go
ion dis pkn» with the second ? We have tieen.
4ni^ pBvinr the way for this last question,
which is the troe snliject for yonr consider-
srtion* Tne cpiestion oomes to be. Whether
the public firbsecntor, npon now giving np the
ftnt libel, is entitled to proceed on the se-
^i^bnd r We' sabmh that he is not. For it ap-
pears from' the case of Charteris, that the
Conft' wbnld not allow the public prosecotor
fb bave in dependence several Ubeb at the
snie time.' lliey forced him to abandon
tbrte of his libels altogether, and then colonel
Chltfleris went to trial on the fourth. Sup-
posing it' had been dismissed upon the rele-
Wncy, and that the public prosecutor had
ifsen allowed to depart from tiiat'libel by the
Court, hie might have brought a new indict-
liieiiti But I ask this, upon wlndi the whoTe
point now depends; Would it have been
eompetent for the public prosecutor, after
Ittvl&g been fbreed by the Codrt to withdra.w
^bee of the libels, before diie panel was
obliged to plead to the fourth, to have on the
Mne day. ettciited these other three libels,
and foned the panel to ao on and plead to
thiemt This winild have been considered so
giest an evasion of the justice done by the
Cduft just befons, that H would not have been
«ndared« No public prosecutor could have
«et Us fooe to that Yet, ^bere is the differ-
ence betwcien diat proceeding' and the pro-
ceeding in the preseht iutande^ 'Fhe first
libd here is in dependence, and a new one
iMtt been executed upon the same grounds,
dMNigh not in the same form. The' posecutdr
eneentes a ne# indictment before tne old one
Ins been disposed of. Is there any difference
between this case and the case of colonel
Charteris, as it wotdd have existed, if the pub-
lic prasecotor, after abandoiung three indict-
ments, had proceeded in the manner vrhich I
liave just supposed ?

Your loidsMps have been t^d, that there is
lio intention to do any injustice to my client.
'Idojwt say Aete is. I say they havie gone
witmg in point of form— in point of power —
diSsy have no' right to' proceed as they are
dbmg. Tbouffh die puoKc prosecutor now
n^ not be disposed to do injustice, his suc-
msor may; and we mi^t as well set afloat
the vrhole forms of the Court at once, upon

sa^nf that the pubtie prosedlitor intends no
injustice.

It vras said, that the counsel for the panel
had notice that a new indictment ina t6 be
execnted, and that the former indictment was '
to be abandoned'. I am one of the- paneFs
counsel, and I did not ^et notice of this. But
vrhat signifies the notiee? It is binding on
nobody-^it is not binding on the prosecutor,
or on the panel. Sodi a thing could not bn
done wfthcmt the Court. Tt was very well in
my lord advocate to have such polite inteitf-
tions toward the' panel; but it ift not fbr hk
lordship to determine this matter. It is the
Court, vriiich are to do or "not do what' he
wishes, according to their opinien of Ihtt merits
of the case.

This land of specialty pleaded by the pro^
secntor signified nothing. l>own to the present
hour, my client and his counsel have been
forced to the consideration of bodi indicf-
ments; and no Uttle consideration has been
pven to both — and that is the hardship winch
It is the object of the law to prevent. Upon
the whole, therefore, I hope that I am not
obliged to answer this indictment before the
fint shall be disposed of— and then I am enti-
tled to the benefit of ftill tadiiekr, after the
first libel shall' be abandoned. I akn not
bound to answer to this indictment vrithout
any warning. If the prosecutor had no right
to execute that indictment, it must be consi-
dered as not executed at aU. Fifteta dayi^
at all events, must be allowed after the fin*-
indictment shall be legally abandoniid.

Mr. j€§r^. — ^There are only two pointSi— .

lardJdnocaU. — I olject to more thin two
counsel for the panel in reply.

Lord Earmamd, — As many of tht pvMi's
counsel as please may speak.

Irsrd Ado&oaU.'^KB many of them as vrirfied
might have spoken before the Crown vriaa
called upon to tfnsvrer, but they cannot now
all be allowed to speak. It is also' irregtilar
for ft juirior counsel to speak after a steieit
counsel.

Hr. Jf^ri^.^What have you to do With
that?

Lord fiiBrmand.-*In justice to myself, I must
here offer an explanation. One of the oldest
cases I remember is the trial of ProvOSst tdooi-
gomerie in 1759. Half a docen counsel theie
spoke wrMm. I have myself been in cases
in which this was done, having spdcen in the
middle of four or five counsel ; but it vras at
the beginning, in answer to a plea to the lel^
vancy, and not in r^ly.

LordJuttice Cfer^— I am of opinion vKth ford
Bermand. Here the' vrhole eight counsel f6r
the panel oiiffht hilve spoken in succession im-
mediately aner Mr. Cranstoun ; but I* know
no instance of two replies having been ad*
ntiitted for a panel.

My lords^ you hlive beard thia argument

SSB] ^7 GBOBGe MI.

what are your opinions on toe subject.

Lord JStrmmd, — Jn eve 17 eaie I abouM bfe
4esirou0 of gfttUng anjr infi^rmatimi to enable
w^ io sitftaiii ^li^ctioiis in ikvom of a pet-
•oaer.' But my opinion k, that the objection
,in tbe prelent case moat be Kepelled^ bectnae
.the piiaoner baa no inteveat to. ptead the ob-
jftofcion.

At tlie aame ttme^ I am dispoeed to do all

rMte to the argnment of Mr. Granatoon.
«tated» ihaK the panel had pleaded not
<giii>l|r tp the fimiier todietment-r^thait Inibrmar
'tioQS bad been ordarad upon objections which
mv» atHted lo the nleynney-T-lfaftt a new
indictment had been served while the fonner
indictaent had i»ot bean deaerted-^-and that
itbe f<ffinor indictment oannot be deserted
^vithout the authoritT of the Court. He
.atatfldy that fifteen days farther of Mhcmb
,iiii|^tba of material adtaaftaga to the panel;
Mid he figured ttroog cases of hardship which
.4ha Court would h»re to check ; for iottaace,
.4bere might be a series of indictmentfy upon
#Qfna one of which the king's adrocsata aught
Uk9 it ipto his h«ad to transfer suddenly tine
4rial to Iiiv^meM or Aberdeen. ' I hope no
imch thing will erer happen; bat should it
liappen, the Court has power to redress the
gnevance.

In ooosideiing jtfie oljsection which has bean
ibronght forvard^I wish to know vriiat interest
the panel has to. plead it. I could figure a
case whsie the panel might have a strong i»-
terest to plead sucH an objection; and then I
might think dlfierently from what I do on the
fires^iit occMtton.

The case would have been altogether diHev-
fnty if a different crime had beendi^rged in
the second indictment from what was diaiged
in the first, or if the crime had been differenUy
gtis^ nr if fqqiethipg had been added by the
,|N>bUc piosecator. Qat here the indictments
#fe tha 4fMna. Something is left, out in the
second, which aj^ared to me .objecti<^;iable
in toe fif)|t^tbe nfivative, that the paoal
hating ''at Glasgow,'' &c. ^'wickedlr, mali-
cipusl^ri and ^mtprooiily conspired and agreed
with ouer evil disposed persons, to break and
disturb the public peace, to change, subvert,
and overthrow the government, and to excite,
move, and nd^ insurrection and reb^Hon,
and especially to hold and attend secret meet-
ings, n>r the purpose of obtaining annual
parliaments and universal suffrage by yt^Iawftil
"means, did," 8ec. But are the pane's counsel
much the worse in their cogitations on the
second trial, from this passaee being struck
out of the indictment ? There is no increase
jia ^ second indictB}ient; a^d^ with tlie dimi-
nution wUcoI h^ve now mentioned) the twp
ic^ictnieata ai;e ip the same t9rm<«. The
pai^, itHerefore, i^aa nq M^r««t to plead the
.(^e^jtioa apon t¥<^ M appears to rely.

It is true that the 'pros^Utar, .in lavr, or in
¥^ «C *»W>;i«B»ot^4>f biP^s^^ 4^«.the

tridt/WiOkmU^

tMi

4iat fiat did tha judgas aTor #1^ 4t iatp
their minds <o ask tba prosecutor, upo»as^
ocoasioQ, why he deiwca 4^ diet to be da-
sarted 7 We preanme he has. gaod ;resaana
for doing 80» im we never fudc him to state
those jreaaone. The power of paaping liroai «r
desartii^ an iadiiitqient^ is sabstant»a4y in hb
m^eat/s adaocate or hni depaties<

J think the counsel for the panel woald hava
done belter to have withheld their otteetion*
Qps this paoal pleaded to the present indid-
maot? J believe not; for his counsel pjna-
vented him. The fir^t indictment had aat
gona ta a jaiy^ aad never will. jBefna ait
iadictment go to a jury, it has l>aaa Vy pata*
tice in the power of the pB0faca(cir ai wf
time to p»sa firam itbylvn^ginga.aaooadA»-
dictment; and it ware ;univise to pat -a lash
hand to a|i^ vanatian in the procadaraiiaaii-
minal iriM** Many in^tanoes mig^ be cited
of a ^TRt indicti^ant having b^n virMiaUf
passed ftom by a sacoad aamagy and taanr
casei ^ ithat efiact .were 'ditad by one of ihis
learaad g^tlemaui withont going fni^^er bnek
than^ail}. Thasa^yisasai^ifMailiar^ojiaj^)'
I wap pre9?qt at sei^eral of 4ha tiials« Tha
lord advocate want further baqk, apd he slatait
the o(#a of IVUndham. I taka the tme Tiaar
of ^e law to ;be .j^hi4*^at iba aemn^ <{f n
new indictment israaabsAaAtlal dereUctMpof
a fpraMt indiatmant. An a|i|>UcaftiQn to <he
Coi^?t an tfia iml^apt is a mare master of lam.
No good aaa arise iipm snsiaiiaagtheolQe^
tion in this case; and M<^ not tUidt tfentin
law and praatiea it can )>a anatainad.

Lord 6M/im,— I aia notaava. that i eaa ar-
rive at the same condition yri^h mgf bsoihar
who has now spolfLon^

I think it fiur to state in ihe outlet, thm
actual hardship is a plan whi<;^ cannot te
stated in the present inat^ce. I do nqjt^hiidE
that the panel can complain of hardship ;
na snob plaa» I belW^a* i^ aaaously ii
on, as thai of actual bardiMiip- IV
of trtte pcisonar's oonnsal is aa oUaotion. in
point of ibias, foondad ^i^pon prineipi^ and all
mims whidi ragnlate anamal proeednra are
of importance*

The case of Charteris was tha first nfenad
to; and what do I gather from thai aaaa.?
There were fonr indictmaats ; and thapiisaaar
was brought to the bar under the charge ooa-
tained in all these four indictments^ having
pleaded at that time to none :0f tbem. Bis
counsel excepted to thiSi and I thiidc widi
reason; and, in consec|uenca of whatpaaaed,
the prosecutor was obliged to abandon tbran
of iba indictBMuts, and the trial pmeeaded
npon tba fourth. I undemtood Idr.Clai^.'^la
ftay> that the trial djfd not pvoeefed mstaM»;
in which I think be is. mata&aik I think thsl
aD that lais done in that oaHi waa tofiad ilr
piasecutor aouH not praoeed on siky (ipe in-
4ictma^t without expressly abandoniag.alMa
rest; and I understand the ^al proeaadafi

ia^^iaAeiy. , TMs judgraeat, whethat r^

Jmr'AiminitierMg miikfmfiU Oaiht.

ttSSl

er wronif In ibe Mte of Chaiterit, and tlK>6gh
mvdk fomded on, seems to have been depart-
ed Irmb in the subsequent practice of the
Coorii it senm lo have become an establisb-
«d praetiee^ reooBcileaUe with prindjple, thai
« IMiblie . pvostecmor vaj raise indictments
■gainsc a prisoner in soecetoion for any peiiod,
«>m1 Msy bring fainiy when he chooses, touiai,
•nd that the ptisoner has now no gnumd for
ol^ectioo as in the case of Charteiis. I iM>ld
eOy for this reason, that it is now an established
fifinciple^ ^diat in eriminal prosecutions, a
public praaecutor^ by raising a fresh indict-
sncBi against a prisoner, so ^m> passes from all
teaser indictments. Suppose, therefore, that
dbe uaiMtttnate man at me bar had not plead*
«d to the old indictment, I should have consi-
dered the new indictment a nrtual abandon*-
ment of the former one. I conceive that the
practice which has followed the case of
CSiarteBS, b reconciieable to pnnciple,-and for
this reason, thai till a prisoner pleads to an in-
dictment, the public prosecutor has the dis-
posal of the indictment and be may brin^ it or
aot befine the Court — be may abandon it vir-
tual^, or expressly,' without the consent of the
Ceeort.

IJiai is what the practice goes to. But what
is the case here ? The difference between this
and cdbnel Charteris's case is, that here the
priscmer did plead to the indictment, ^d what
Was the consequence of bu doing so ? — that
the indictment wa^ no longer within the power
of the public prosecutor — ^he no longer could
desert the diet — that is all within the exclusive
power of the Court. If I am Asked whether,
when Utiscontettation has taken place, and the
pleading of the prisoner to the Indictment
may finrly Ito considered as an act of litiscon-
testation,, the public prosecutor is entitled, of
bis otm anthority, to desert the diet or aban-
don the charge r I answer in the negative.
He cannot do it without the interposition of
the autfaori^ of this Court.

* Tbet question is decisive to a certain degree
.on the pment point. If he cannot abandon
it ezpiessly, be cannot do it virtually-r^he
cannot do it by implication — he cannot do it
Without the authority of the Court. It is laid
down bjT ^^' HumSir-i^iid I conceive it to be
a moe^ important principle in our proceeding
— tfbt after a panel has pleaded to an indict-
ment^ |be. authority of the Court must be had
for the abandonment of that indictment. I do
not talk of tinis as a case of hardship ; but I
eoneeiTe hiiidilups might arise from the exer-
cise, by % public prosecutor, of such a right
as Ue maies^s advocate now contends for.

The pmUc proeecntor has many ptivilege».
Masf ^ jbilqrr end reasonnblj, aiul wisely,
end Ibr tb^ most proper puiposcs, given to
Ui^ isiicb an noLaihmed to a private prose*-
tetoe; AtiiiliieeBtfstalien goes through all
CM&. Afitar it^ neither party <^ go out of
fSeoil widsni the euthoritv of -the Court.
'Hesae ifiostsalce tbe nghsi, the aitaation, and
fwiWaanmit eC the piwttc preiecttler, 1^

you xxxm.

A. D. 1817.

[*«(»

ferring to the situation of the private prose-
cutor in similar cases* i can easily conceive
cases to exists thcjogh I have no apprehensions
of their existing, in which it might oe the duty
of your lordships, in point of justice and law,
and on important eonsiderations of every
description, to aay that you would not allow
the public prosecutor to abandon an indict
ment and take up a new one.

I apply this principle to the present ease.
The panel has pleaded not guilty to the first
indictment, and a new one ham been raised.
I do not say the new one is null — ^I am not
prepared to go that length. But this, much I
say, that this does not extinguish the old .one
-Ahat it is not a virtual diK^aige of it, ber
cause the public prosecutor cannot expresily
disdiarge or desert the first of himself. I
conceive that the first stiU subsists«4t has not
been dischaiged by any atuthority competent
to disdbarge it. tt still subsists; ana here
the prisoner has a fresh indictment served
against him. What is to be done with the
present indictment ? It is. not null— but whal
the prisoner says is, I must have full tadud^
granted me; and the whole questiou is,
whether the full tnduour shall be granted him,
YesorNo?

I think that, in point of form, you are bound
to dispose of the first indictment, and then the
question is, whether you will allow the panel
the fifteen days, Yes or No ?

It was said that the prisoner has no interest
to plead the objection. I cannot go into that.
This is a question of life and death, and he is
the best jodge of his own interest. I am not
lentitled to tell him that he has no interest not
•to be tried to-day. For any thing I know, he
has a great interest — a material interest, by
which his life may be preserved or prolonged'
To have his life proloaged even for fifleen or
sbcteto days, is perhaps a serious object to
him, as avoiding nim possibly a better chance
to save it from ue. present danger*

If tbe practice lounded on by tbe Crown
counsel were of long standing, inveterate, and
feconcileable to principle, I should hold it
sufficient to authorise the proceeding which i#
olijeeted to in thk case. But as to the prac-
tice cited here, where an indiotment has been
pleaded to by the prisoner, I have seen ne
eases stated prior to .1813. The ease of
SomervHle in I8ia, and that of Horn in 1814,
iwere mentioned. The case of Mendham I
hafve no distinct recollection of. I take it for
Uraated it.was coneetly stated. These three
cases are all we have been told of, which truly
epl^y to the present case. I cannot pay such
jegard to these cases, as to be of opinion that
they entitle me to overrule the objection ^
.Jlirs^ Becauie they are too recent in date, and
too few in nnmben for regulating our decision:
Saoondfy^ I thibk.they ought not to be M;tended
to, for thisTeaton^ - taacanse I da not -see that
the ol^)ection was stated; and vi!e all know
Imw apt the best men are to fall into errors
and shght irtegulaiities when not put cm their

4271

57 G£ORG£ III.

gtiard by the bar. Wewert told^ that it is
%e duty of the Coart to watch over the pto>
ceedingSy and see that they are regular and
consonant to established forms, whether any
thing be stated from the bar or not. In that
obsmation I agree; and I am sure that I
sneak the sentiments of the Court when I sav,
that we are sensible of the anxious and able
care displayed by your lordship on all occft-
sions of that kind. But it is impossible for
any man to attend- to every thing, I say,
therefore, I pay. much the less regard to these
cases, because they were not argued by the
bar. They are cases in which the objection
was not urged. If the objection had been
stated the Court would have given greater
consideration to the point. I nave a third
reason, viz. that I cannot reconcile these deci-
sions to strict principle. I think that after a
panel has pleaded to an indictment, the public
prosecutor cannot pass from that indictment
without the authority of the Court; and that
he cannot virtually abandon a first indictment
after such pleading, merely by serving a second
indictment upon the prisoner.

I therefore think this objection is well found-
ed, to the effect that it is our duty to insist that
the lord advocate shall proceed on the former
indictment, or shall now move the Court to de«
sert it. Whether any consequences may follow
from delay, I am not aware. The panel asks
fifteen days longer; and, if he is right in point
of form, I cannot refuse his demand, on the
ground that he has no interest in what he asks.

Lord PUmUfy — This is a point attended
with some difficulty ; and it would be singular
indeied, if,^ after attending to the learned plead-
ings at the bar, and y^nai we have heara from
the bench, I could say I fek it unattended
with difficulty. My impression however is,
that the objection is not well founded. In
questions of this description, the practice is
the safest guide to go oy. It here appean
strong. I do not speak particularly ot the
case of Mendham ; but the cases of Somer-
ville and Horn are distinctly in point«— are
identical to the point before us.

It is true that these are late cases, and that
na others have been mentioned. But let it
be remembered, that this objectioo cmbcs
upon us unprepared. Neither vbur lordships
nor counsel have had time to look to prece-
dents ; and I diink it would be ri|^t to have a
search made into former cases, to see whether
these are the only cases which are the same
with the present.

It ie certainly true that these eases were not
argued before your lordships ; but the Court
is bound to attend, and always does attend to
the relevancy of proceedings of this kind, and
particuiariy when it is important to the de-
fence of a panel at the bar. The Court will
in all such cases attend to the regularity of
procedure ; and in the case of Somerville this
point Was suted to the Court— it wae aot
argued, but it vras not overiooked.

Trial of fFiOiam Edgar [328

I do not see that any hardship could ariw
from holding that the serving of a new indict-
ment is a virtual abuidonment of the old.
It was upon that principle that the case of
Somerville was decided ; and if I did not uxf
derstand that to be the principle in the case of
Somerville, I should be of a oifierent opinion
as to the present case. I see no hardship to
the panel, nor any want of principle in the
rule. It is upon these grounds, though with
difficulty and hesitation, that I think the ob*
jection cannot be sustained. At the same
time, it may appear to be of importance, and
I have no objection to have the poini more
fully considered, and a search maae for pra^
cedents, because I am satisfied that when the
matter is investigated, it will be found that
the Court has proceeded upon these grounds
in other cases.

Lord Re$ton, — The first inquiry is, whether
this (question has been settled or not by prior
practice? If it is not so settled, I agree in
the opinion which Lord Gillies expressed.

If I understand the quotations that were
read from Mr. Hume, it is not in the power of
the public prosecutor, without the autnoritT of
the Court, to pass from an indictment to'whic&
a panel has pleaded ; and the panel may in*
sist that the case should now go on upon the
first indictment. The panel riiould not Be
exposed to the hardship) of not knowing upon
which indictment his trial is to proceed. It is
in the power of the Court to pass from the
first indictment or not, upon the motion of the
lord advocate; and the panel should not be
uncertain, upon coming into Court, upon
which of the two indictments he is to be tried.
It would be a hardship to put him in that
situation.

It was said that the indictments are ibm
same, or the one only a part of the other.
That certainly does appear to be the case;
but when they come to be minutely sifted^
other circumstances may be discovered, of
which the panel may avail himself.

I think ne ought to have fifteen days mdudm
on the second indictment, after the authority
of the Court is given to the abandonment of the
first indictment.

As to the practice which has been cited.
Lord Gillies stated very good reasons wi^ we
should not be bound by it. It is only or firar
years standing, and the objection was not
stated' in any of the cases which were cited.
The oractice cannot therefore be binding on
the Court I am for sustaining the objeCtioii,
or allowing a search for precedents. The
practice is periiaps of Icmger staindfiag.

Lord Jmtiee Cferle.— I certainly have ne
difficulty in etating.to your lordahipB, ^lal^
notwithstanding the veiy able manner in wUd^
this argument has been urged on the part of
the prisoner, and notwithstanding my deib-
Anee for the opinions of my brothen on tnj
left hand, I am not pfepoasd ^orcoaeur in ih«
oliectiQUwIiifikhis.WflD hreoght forward in

3SQJ

Jitr AimvKutmng unla»gfiil Oaiht.

A. D. 1817.

[39»

thk cast ; ^nd if driven to the neeeisity of
ming a decided opinion at present, I. most
differ from these learned lords, and find that
. the objection ought not to be sustained. Not-
withstanding the weight of these opinions, you
have the practice established in point of fact
— for, from the deliberate averment of the
Counsel for the Crown, you must assume that
there is a series of cases in which yon have
acted on a principle directly opposite to that
which is now contended for by the Counsel for
the prisoner. I apprehend that it is also a
weighty consideration in this question, that in
one of the cases which has been cited, as to
the procedure in cases like the present, the
prisoner was visited by most exemplary pu-
nishment. I allude particularly to the case of
Lindsay Cranford, who was sentenced to trans-
|M>rtation for fourteen vears. Somerville too
was unfortunate indeed, if there was a valid
objection which might have been stated
against his trial, as the sentence upon him
was imprisonment, aeoampaaied witn an ex-
lubition on the piUory. These are precedents
which have net been hitherto doubted by the
Court; and yet our attention is now called
to this ({uestion, and we are desired to austain
the obfection of the panel's counsel. I hold
it to be mj sacred duty, sitting here as a Judge
in a question as to aform of procedure, before
I pat my rash haAd to alter what has been
the practice, to be convinced by argument,
reason, and authority, beyond doubt, that that
practice so uniformly adopted, and followed
by SQcb consequences, is oontrarv to law. If
I did not so act, I should consider myself as
in foet accessory to a fundamental subversion
4^" oor criminal procedure.

But although my opinion is different from
that of my learned brothers, I am disposed to
ge into the proposition made by Lord Pitmilly
of inquiring into the fact, Whether or not
these recent eases are bottomed upon an
-Meat piactiee; which, if established, would
go greatly to do away, or would much diminish
&e Impression of the opposite opinions which
tere been delivered.

I -dunk it no more dun justice to the lord
advocate to say of the statement of his lord-
ship, that he had no other view than to bring
beme the Court the practice prior to that
staled 1^ Mr. Dnimmond. The case of
Meodham occurred in 1804, not so recent as
the practice ^uded to in 1812. Mr. Burnet,
where speaking of forgery, page 190, says,
^ The question again occurred m the trial of the
same person (Mendham) in October 1804, for
ottering and vending' forged notes. The Court
esdared informatioBS on the point, hut the
^[Kosecotor aftervrardspaned/rim the charge, and
teoB^t llendham to trial on a different indict-
ment in December following, for forging and
uttering Bank of England notes, with an
Intent to defiand the Bsuok of EngbLnd." Your
lordships see, that Mr. Burnet, vrho was
fintoiltar with the forms of the Court, and
was indottrioos to make himself acquainted

with every thing relating to the criminal law
and procedure, states, in the very language
which is objected to in this case, that the pro-
secutor afterwards .passed ftom the charge.
This is another case to-be added to that traia
of precedents which have been cited.

This then being the case ; there being evi-
dence before you of a practice since 1804,
and in one of the cases, the attention of the
Court having been particularly directed to the
point in question, — a circumstance which I
now positively remember, — the question is.
Whether the panel is now entitled to state to
your lordships, that there is such a formidable
objection to this practice, in point of principle^
that you ought to lay it aside, and establish a
new practice in this Court. That is the ex-
tent of the argument pressed upon you. Cases
formerly were not so fully reported as they
now are ; but you are bound to hold, that in
those in which the practice now objected to
was followed, it had the consideration of the
Court. If the practice had .appeared to the
Judges to be objectionable, they would have
interfered, .though no objections were stated
by the panel's counsel.

I cannot agree vrith my learned brothers as
to the possibilitjr of hardship arising io a party
from toe practice which has been followed
in this case. I do not .think that the

Sublic prosecutor, in virtually passing from a
rst indictment by serviog a second, leaves
the panel m dubio upon which indictment he is
to be tried. If it could be made out to my sa-
tisfaction that such was the case, I should in-
deed see something like hardship. But the
moment it is held to be clear law, that even
after the debate on the relevancy of an indict*
ment, and after informations ordered on tlie
subject of the objections stated, the public
prosecutor, by serving a second indictment^
passes from the first, no injury can ^possibly
arise to a panel ; he cannot be ignorant upon
which of the indictments he is to he tned.
The Counsel must know .the law; and when
eonsiilted by him, they can inform him, that
though five indictments have been served
against him, it is only the last to which he has
occasion to direct his attention. It is the duty
of counsel for an accused, in reference to
what I hold to be the clear rule of practice, to
give the panel this information, and then ncf
panel can be held in doubt as to the indict-
ment upon which his jtrial is to proceed. It
is upon a settled conviction that.no prejudice
can arise to a panel tn such a situation that I
think the objection is not well-founded.

Indictments, where there has been no plead-
ing, are every day passed from, with or with-
out any reason appearing on the face of the
indictment. I say, the same principle applies
to a case like the present. The cases are the
same as to the safety of the prisoner. There
cannot remain in his mind a shadow of doubt
as to the indictment upon which his trial is to
proceed ; the rule of practice is a sufficient
guide for him.

3di]

57 GEORGE III.

Trial of ]Vilimm Btlgar

[OSS

Upon th«M yroQlidt, I my 9 I ikovld be for
lepelUiig the objettioD ; but I oonenr in tba
piropoBiliOD wbieb bum boon vomA% to yom: loid^
ships, that in a point of pactioe, which is of
nnfifiite consequence to the aocased--4he lew
of the country-^-and the guidance of faturity-^
and where it is stated that a recent practice
only had crept in which was unknown in
former cases, an inquiry should be made to
ascertain clearly how the matter stands.

A small indulgence in point of time may be
granted. The parties may be allowed to give
in short Miovtes of the state of the practice,
to be delivered on or before Saturday next ;
and the case may be resumed tlus day
se'enoight.

Lord Advocate. — ^There is another trial, that
of Douglas,* fixed for Monday. I never have
felt au^ desire to press a prisoner in point of
time, if any object whatever w%8 stated to me
for his wishing delay. If the panel's counsel
wish for time, I can have no objection to grant
il them. On the present occasion, I only think
it necessary that I should be permitted to
state upon your lordships* record, vrhat I now
state vtvd voce, that I aid understand that by
the service of ihe second indictment there was
a virtual abandonment of the first.

I have no objection to this point being settled,
even previous to Monday. The Minutes
should be ordered to be given in immediately,
that there may be no delay in bringing on the
trial afterwards, as we may be told, perhaps,
that no indttcut had been running upon a se-
cond indictment. I do not wish to press the
business ; but a short day should be assigned
for the inquiry proposed, which may be com-
{»leted without delay.

Mr. Clerk, — It is impossible to search a re-
cord which has no index, in two days.

Lotd ChUiet, — There may be a debate upon
the relevancy; and, by possibility, what the
lorjl-edvooate tayt may tslte place.

Lord Advocate. — ^I passed from the first in-
dictment by executing the second, and the ti»-
ducUe on the second began to run from that
time. I owe too much to the law and the
decisions of your lordships, not to oppose
the objection which has been brought fi)rward
to day.

LordJuttiee Clerk, — ^Therais to be no argu-
ment in the minutes. They are to be seen imd
interchanged.

Lord Advocate, — ^With regard to the terms of
your interlocutor, a diet cannot be continued

rto an indictment which has been passed from,
passed from the first indictment, and a ma-
jority of the Court agree that the first does not
now subsist.

Lord Ot/lMt.F*The authority of the Court
roust be obtained to the passing from that in^
dictment.

. Iprd Jmtim CMk.--Wt ke^ evaij thing
entire.

Lord Advocate. — ^The question for your con-
sideration has not arisen under the first, but
uDder the second indictment. Your lordshipi
called the second indictment ; you called tb^
panel to plead to it ; and in bar of his doing
so, a motion was made that the trial should not
take place upon that indictment ; and the ques-
tion IS, whether the trial can proceed ou it or
not ? Therefore you cannot proceed on anj
other, or continue any other than the second
indictment. A majority of your lordships are
of opinion that the first indictment was, yir^
tiially passed from, and I called the diet of no
other indictment than the second.

■V*.

• VideFott.

i%efoUowkig wmutei of the debate were them
entered ttpon fAe record.

CraneUMB, for the paa^ objatiedg —
That il was incompetent to serve od«^ libel
against « panel, while another^ upon whid^
he hfkd siready joined issue by ple^tding^
was still current against him ; That the
first libel, having been pleaded to in fiic^
of the Court, was no longer eub potettate
of the public prosecutor, and could notb*
deserted, or otherwise disposed of, hot bv
iudgment of the Court : That tlus Ube^
being still in fiDrce against the panel, mm
the only one against which he could nofw
be called to defend himself; and that iit
vras not till after it had been disposed of
by sentence of their lordships^ thai there
was room lor the semoe of a second*
against which tbe panel was entitled to hav^
the full mdMcim of fifteen days to prepare
for his defence.

Home DniBUBond, for his mijesty'aad-
vocaike, aatwered^ — That the proceeding
4ipon this oocasion ia sanctioned bv the
established practice of the Court; and thai
the very same oourae has been invariablf
followed in every caae wh^o the same
drcumstanoes have occurred. So, for ex-
ample» in the case of Lindsay Cranford,
indicted to stand trial on the 9th Jannaiy
1812, when the diet being continued tifl
3rd February, new criminal letters were
in the meahtime raised, the diet whereof
fell on the same day, and the trial pro-
ceeded. Thomas Somerville was indicted
to stand trial on the 25th Janoary 1818.
He pleaded not guilty ; and after a debate
on tne relevancy of the libel, informatioii^
were ordered to be lodged on the 15th
. Febniaiy ; but new criminal letten were
raised, the diet whereof fell on die aaaie
day, ttid the trial proceeded* A question
was asked in this case by one of the jodgee»
if it would not be proper to desert the diet
of the first libel r but it waft amwerfO^
tha^ a desertioa might be aigued to affect
the second also; and thai the former wa*
held to be abandooed 1^ the aenrioe of m

883]

Jot AHAkimhkg ««te|^ Oa<b.

A. D. mi

(B8«

bere to the pndSoe ; avid the case pro-
ceeded. In tlie caset of Joha Hom» JoDe
13th and July 6.tb 1814, and of Joha Bell,
who pleaded giiilty on the first oaUing of
the diet, January 9th and Fieibraary 3id
and loth, 1817, similar proceedings look

eace; aa also in the preyious case of
endham in 1804.

2do, His majesty's adrocate possesses
an uncontrolled power orer his iKAanct in
all stages of a criminal process. He is not
bound^as a private prosecutpr is, by statute,
to insist at the appointed diet, but may at
all times abandon or pass from any indict-
ment he has raised, or any part thereof;
and he does so in daily practice, according
to his pleasure* And if he exercise this
power at any time before an assize is set
to try the case, he is still at liberty to
insist of new against the panel in another
indictment for the same offence.

3tio, The remedy for the possible abuses
that may follow from this power, is to be
found, not in attempting to compel the
prosecutor to maintain an instancy whidi
ne has dropped, orer whldi the Court have
BO control, and for which the panel has no
interest to^ insist, as he is out of Court by
the abandonment of the charge but in
opposing its oppresxiTe renewal or con-
tinuation, when the Court may, on suf-
ficient cause being shewn, desert the diet

4to, No objection is ot can be made to
the numberless examples of an instance
dropped where the panel has never pleaded
to the charge. Now this case is in nowise
different in principle ; for the parties can
ui no sense be said to have '^ joined issue"
befoiia an assise is set ; no «plea or state-
ment of tacts beine i&nal Inal is enteied
More the judges of the fact are named ;
nor can a panel have a jim quantum in his
own plea. The doctrine of jmmng time
or Uiucontettaiionf has no existence in this
court, being foanded in a presumed ju-
dicial contract between the parties; a
thing inconsistent with the first principles
of criminal law.

Lastly. — Service of a second libel has,
in the recent practice of the Court, been
held to imply the virtual abandonment of
the first ; and, consequently, there is no
ground for the complaint of two indict-
ments subsisting at once against the panel,
and of his ancertainty to which he may be
called upon to answer. Accordingly, his
najeaty's advocate dedares, that hebAs
abandoned the first libel ; and he has no
objectioQ to aath^nticate this statement on
the leeoid in ^y form the Court may thmk
fit; and this he appieiiends 18 aU the panel
Ims any ri^t to requite.

As to the taAiCtif of fifteen days, tiiere
is nothing In the aoi of paiHameat to pre-
mitlht service of a second libiel

the OEisleBoa of « 16m» oner; aaS it is
contrary Co no prindple, and sanctioned
liy the inveterate pnK»^ of the Court.

The Lord Justice dei^ and Lords' com*
missioners of Justiciary having oonsfdered
the foregoing objection, wifli the answer
thereto, and heard parties' procuraton
tliereupon at neat length, before afiswer,
ordain parties^ procurators to pi^pare and
give in minutes, stating the practice re-
^tiv^ to the said olpectipn; to see and
interchange these minutes ; and to print
and lodge the same in tiie hands of tiie
clerk of court between and Saturday next,
in order to be recorded. Continue the
diet against the panel, and whole other
diets m court, tiU Monday next, at tea
o'clock forenoon, in this place : And or-
dain parties^ witness^, assizers, and sJI
concerned, then to attend, each under the
pains of law; and the panel in the
meantime to be carried back to the Castle
of j^inburgh.

(Signed) D, Botlk, J. P. D.

BUNl/TES or Search ov tbb Books ov
AnjouBKAL, From lif January 1777.

Alexander Penrose Citming, £s<|uire,
against John Lawson. Perjury, 1785.

The dietwas deserted pfo/aoo«/ tombre on
1st Februaiy 1785, the panel not Tuiving
pleaded. After the interiocator deserting
the diet, ^ Mr. Erskine then represented
that new criminal letters had been raisea
and executed, at the instance of Mr*
Cuming of Altyre, against the said John
Lawson, the diet thereof stood ooatinued
to thiA day,'' The Court continued the
diet upon these last criminal letters to the
14th of February; on which day the
panel pleaded not guilty, and informations
were ordered. He was afterwaids'' tried,
and found not guilty.

John Burns and Alrxanbrr Bailur
VRitcH. Atumli, 17B0» *

The diet was called on 21st I>ecember
1789, when Veitch was outlawed; and
the diet continued against Bums to 18th
January 1790, before he had pleaded to
the charge. In the mean time, Veiteh
applied to the Court tobe reponed against
the sentence of fugitatioh.

On i6ih December 1789, Burns and
Veitch were served with a new indictment
for' trial on the said 18th of January.
Upon that day the Court ad^oatned to the
25th ; from which it was a^ouned to the
26th, and iirom -the 26th .to the let
February. The trial proceeded on 1st
February, when the pnels<«rere tried and
convicted. . ' I ,

S36]

57 GEORGB IIL

^WHUam Edgar

[336

BEftBYi RoBBKXSONy Alld CaLLAWDBB,^

Se^aUm^ 1793.

Upon 28tk JanuBiy, diet was called ;
Callander was outlawed; and the diet
was continued against the other prisoners
(who had not pleaded tO' the indictment),
till 11th Febmaiy, when the instance was
allowed to fsXX,

On 18th February they were tried and
connoted on an indictment which had
been served previous to the said 11th of
February.

Alexavdeb ScoTT.f SedUian. 1794.

Upon 20th January the diet was called
and deserted pro loco et tempore; but,
upon the ISth, anew indictment had been
served against the prisoner, chargiAg him
to compear upon 3a February.

On 3d February the diet of the second
indictment was called, and Scott was
fuiitated.

RrpHABO Mbvoham, Forgety. 1804.

Ricjianl Mendham was cited to com-
pear on 10th October 1804, when he
pleaded not guilty.

Informations ordered to be given in on
or before 30th October : diet continued
to 1st November ; further continuation to
13th November, when whole diets of
court continued to 14th; on which day,
instance aRainst Mendham dropt.

New indictment served on 3rd Novem-
ber, charging him to appear the 19th
November. On that day, a continuation
to 26th November; then continued to
lZ9th, and from Uiatto 3rd December;
long pleading on the relevancy ; and, after
debate, his majesty's advocate passed
from the libel, so far as laid on the com-
mon law; and diet continued till next day.

4th December, continued till 7th De-
cember; continued till next day. 8th,
further continued till 10th ; on which
day, interlocutor on relevancy; not rele-
vant ; dismissed from the bar.

Alexanoeb Campbell. T^eft and
Robbery. 1809.

After pleading not guiltr, the lord ad-
Tocs(te representod, that, for the present,
he passed from the third charge in the in-
dictment, viz. the theft committed at the
inn at Dunfermline ; but reserving to the
public prosecutor to proceed against the
panel on that charge in a new indictment,
if he shall deem it proper so to do ; and
therefore restricts tne indictment to the
two charges of robbery.

John Likdsay Cbaufobd and James
Bbaoley. Forgery ofwritmgt, January
8, 1812.

Diet continued on motion of panels

• rt<fe.2.How.Mod.St.Tr.79. '

i Vide 2 How. Utod. St. Tr. 383.

tiH ad February ; did not plead ; in the
mean time, sen^ with a new libel to
stand trial on the - 3rd of February. Trial
proceeded accordingly.

Napieb and Grotto: Murder and
BMery, March 31, 1812.

- After pleading to the indictment, the
prosecutor passes from the charge of
murder, and all the charges of robbery,
except the robbery alleged to have been
committed on Peter Bruce and J. Buchan
Brodie.*

The Court find the indictment, as
limited by the foregoing minute, relevant
to infer toe pains of law.

Thomas Sommbbville. Petjury.
January 25, 1813.

Pleaded not guilty. Debate on rele-
vancy; and informations ordered to be
fiven in; and diet condnued till 15.th
February. In the mean time, a new in-
dictment served on the panel, calling him
to stand trial on said 15th February.
IVial proceeded accordingly ; and Som-
merville convicted. Imprisoned, fined,
and put on the pillory.

John Hobn. SelUng Forged Notes.
June 13, 1813.

Pleaded not guilty. Informations order-
ed, and diet continued till 12th July, Iq
the mean time new libel raised, and served
for trial on 6th July ; when panel again
pleaded not guilty, and the order fpr in-
formations renewed ; on advising which,
libel was found relevant, on 15tb July,
when panel pleaded guilty, and was
sentenced to transportation.

Bell and Do vo las. Uttering Forged
Notee, January 9, 1817.

Diet against Douglas desertedpro loco ei
tanpore. Bell pleaded guilty. The Court
ordered informations on the relevancy of
the indictment, and continued the diet
against the panel John Bell, till 3Td Fe*
bruary. In the mean time, a new libel
served for 10th February, when trial pro-
ceeded, and Bell pleaded guilty again,
and had sentence of transportation, the
libel being restricted.f

* Many cases of abandoning or passing from
a part of the charge might be produced ; but
it must be admitted to be a common practice,
as, for example, in cases of child-murder,
where the charge at common law is frequently
passed fh>tn, upon confession of the statutory
offence. H. H. D. .

t Nble.— -There are in this period various
examples of diets deserted, on the motion of
|he prosecutor, pro loco et tempore f after plead*
in([ to the char^ and af^r interlocutor ^f re-
levancy, which it IS thought unnecessary to
produce, as the coinpetency of that proceeding
18 settled law. H. H« D.

2371

Jht AdmimiUnttg. unkmfid Oaihit

ADDITIONAL MINUTES or csh«|

TAIN Cases bisyovd the. Psbiod op
Sbarck.

IsoBEL NicoLsoK. Fire Raiting.
June 25, 1711.

Indicted and accased, &c.

Hbe Lord Justice Clerk and commis-
sionen of justiciary^ at desire and with
consent of her majesty's adTocate, desert
the diet of the first indictment raised at
the instance of her majesty's advocate
against the said Isobel NicoJson, panel;
but prqndioe to him to insist in his other
indictment already raised and execute
against the peael) as accords.

Patrick Haxiltoh of Green. Murder.
July 30, 1714.

Mr. Dnncan Forbes, his majesty's ad-
Yooate, consents to the deserting of the
diet against PatiidL Hamilton, younger,
of Green, upon*, this libel, without pre-
judice to him to insist in the new inaict-
ment raised at the instance of his ma-
jesty's advocate against him. (SieSub.)

Dun. Forbes.

Tbe Lord Justice Clerk and commis-
stoners of justiciary, in respect of the
above consent, desert the diet against the
above Patrick Hamilton, younger, of
Green, upon this indictment, wiUiout
prejudice to the pursuer to insist upon
the new indictment, as accords.

(Signed) Ad; Cockbubk, J. P. D.

This after informations given in and
recorded, and several adjournments of
tlie diets.

AvDRsw Feknie, and Others. Indicted
for Sedition, Debate ; and Infbrma*
tions ordered. May 24. 1720.

July 28. — ^Mr. Walter Stewart, his ma-
jestv's solicitor and advocate^epule, for
his highness' interest, judicially consents
to the deserting of the diet against the with*
in named and designed iUidrew'Femie,
ice. wit)iont prejudice to his majesty's
advocate of insisting a^nst such against
lAom new libels are raised, as aocoras.

The Lord Justice Clerk and commis-
nonerj of justiciary, in respect of the
sJMve consent, desert the diet agaidst the
said Andrew Femie and others, above-
named, wi^out prejudice to his majesty's
advocate of insisting against such of them
against ivhom new libels are raised, as
aooordsl

(Signed) An. Cocxbvbv, J. P. D*

.' » »

The second libd beiny called,
JiiilrM Andrew Fenve, kc. Indicted
«ldaecnsed,-fcc. Debate; and informaf>
tions ordered. The informations , after-
waidB|ivenin, found relevant, and trial
ptooeeos.

A. D. 1817; 1ji39

JiJins IiiGLia^ ladwelter in Leitii. In*
dieted and, accused as ^Ity of
Thefts B4Mery, aid Friecm-irmJMig,
4«. August 24, 1720.

Diet continued till 26th September, and
afterwards to 17th October. On which
day,

hdirm James Inglis. Indicted and
cused, id in dkprecedefUL

Mr. Robert Dundas, lus majeat/s ad-
vocate, for his highness' interest, jnakially
consents'to the deserting of the diet of
the within indictment against James
Inglis, panel, without pr^iMlice of insist-
ing in the new indictment^ as aecpfds.
(Signed) Ro. DuwnAS.

•

The lords commissioners of justiciary,
in respect of the abo?e consent, desert
the diet upon this libel against the said
Jfumes Inglis, without prejudice of in-
sisting on the new libd, as accords.

Inlran James Inglis,* panel.
Indicted and accused on the new in*
dictment. Informations ordered*

MM.

MoNCBiBFF Stated* That in oompUanesr
with the order of the Court, a search had
been made in the Books of Adjournal for
precedents applicable to the question now
before the Court. That a search from
the year 1777 downwards, had tot been
made, and the result had been communi-
c^ed to the panel's counsel some, daya
ago; but that alter this a forther search
had, it seems, been made,iwhich' appear*
to go back to the beginning of the last
centttty : and the statement of thecases
so found was only communicated late on
this day. (May 23.)

That on the part of the panel i^ may
now be assumed, that the (Jburt l^ts b^
fore it every one example which his ma-
jesty's advocate has been able to discover,
in the course of more than a eentwy, of
any proceeding which he thinks- cafcu-
lated to. suTOort th^ measure which has
been adopted in this case, or to meiet tha
objection foundect on th^ deari^t princi-
ples of law.

That on the resiilt of this seanh the
following remaiks are humbly sijibmit-
ted: —

Ittf That there }b not oiU :e3^mple in

.the whole practice of the Court, in vrhich

. the same 0Djectipi\ which is h^re insisted

on was stated to the Cour^ and rspeUid

. hy a judgment '

24 That the lord, advocate haa pointed

the. statement with recard to .tiiose caaei
on which it is pr^uined he means 19 rely;
ai}d that, as- for as the panel's couni^ cuk
discover, the only cases in the long period
which hate the smallcet tendency to shew
any pmctioe la f aT^ni of the proeeonin^

0893 ^ GfiORGB UL

• et ii}AditnxLrtfAtm^^ htting such
a tendent^y are hoo cases m 1714 and
VMf onei^ase in 1804, two hi 1813, and
0n0ial817. Beiweentlieyear 1790, and
the jtar 1804, tbe pilisecator 4ias not
beeii aUe to find cfie single case in the
vecoid,.in wUcn, after a panel had plead-
ed to an indictment, a libel Was served
tuftd susbuned without a prewhm desertion
of the diet on Ihe-flrst indietoent. ^

8r«^ TlAl to sliew this, lie iAiooldshortly
taka notice of eacli of the oaies pHnted
• by iM majisty^i adrocate*

On the first seaicb, the folkMriog state-
ment is sabmitted :-«

Mm Jjmmm^ 1785.~]|i this case the
pancA'had not fUaded,

Burm and Veitck, 1789.— Paneb had
mot pleaded.

&ry^ RoberUon^ and CaUaukr,^ 1793.
—Panels bad not nhadtd,

Akxanda-^Scoif.firU^TvieXhfdnoi
plfadffl,

Rkkatd Jfendkam, 1804.— Tn Uiis case
lie panel bad pleaded nbt ffuilty. Infor-
mafiotts wereordisred; and several con*
tinuations of the diet took place, the last
^ the t4th, November. On that day, it
IS said, the instance vras dropped: And
in the mean time a new indictment had
l>een.n^ed on the 3rd November. This,
. IhmfiMPe. IS one case, in which, after a
parly bad pleaded, a new indictment was
simred before the diet oh die otiier had
bten dtertUd ^ the aiitfioiity of the
Court, 'and 'witiiout anT Jradi desertion.
Biit.the-CbQrt win 1)e pleased M observe,
X|iat In that cale the pftnerdetiiy bad no ,
ititef^t to make tlie objeolkfn, but quite
'iBe reverse. For the iMotid iliditftment
was eqtulty in^evaint with the first ; and
foooidingly the^ Court, after full dbbate,
onleM iuorm^tions; attd after various
•4jdomnient8,the libel wasybiaii ntfT rek-
0«il, and the iMihel was diaNtfMBd,/$ipm ^
bar. Vost ciearlt, therefore, it w4s not
bis jn^rftt to make any e/bjection to the
^irvite of the iec6nd indittmeht.

Alexander Cannbeli, 18Q9.^this is not

a cte kpptitebie to the. poiM sk ail.

' 'There was no qaeMMmslbottt any new itt-

,dictmep|; and the ciroittMtailce ^f tiie

jWbHcpibsaiieufor fiairingfrote particular

diaigir IB tfd indidlfiie&t^ Jntelidinff or

. leservinff the power afterwards %o Aose a

isew iilditetmeiifti ts whoify' tmMteiial to

.ihe^^fl|^. Bututaayir^yltis^fauii^

lAy apprehended, thkt . even lUs takes

■ k^a^ orily with (ho c^ieiit of the Court,

whicl^ is expressed By the forms, of the;

Mttifedifororibevattcy. ^^

; 1w if ^e of Ae eaM wliicli WliA Quoted
/Ui tfe ieb4fe. But the patieb Md not

rriai'tfUmmSt^

tfi40

■•*•

^ !f H6W. If od. St TV. 7^.
t'Sa9W.Mid.St.1V;

pUtded; and therefore it is altogether in-
applicable.

Jfapkr md GroUo, 1813.— This case is
of the same nature with that of Alexan-
der Campbell. There was no second in-
dictment, and no question about a second
indictment

Ilomos SomenUU, 1813.— This case is
so far applicable, that the panel had
pleaded to the first indictment ; that the
second indictment was servad without
any previous desertion of the first'; and
^at the panel was tried and convicted.
But even with regard to this case, it is to
be observed, that ikie crime of which the
panel was accused was that of peijory^
the |>unishment of which could not ex-
ceed imprisonment and piUory ; and that
the panel was at a very serious expence
ill defending himself at every diet of the
Court. It was therefore obviously better
for him that the trid should go on, what-
Irver night be the events than that it
fhould bi flierely out off for fifteeu days.
Accordingly, the objection was not staled
by his counsel, and oouid not l^e jodged
of by the Court

/o^ Euii^ 1813.— This person was in-
dicted for uttering and selling forged
n^es; the first of which is a camtal
offence* He pleaded not guilty, and in-
formations were ordered. Then a new
indictment was served without a^y deser-
tion; and a pleading on the relevancy
apaih took J^ace. But the Ccort will ob-
serve whar followed. When the new
indictment was ftmnd f<elevaiii,^Patt^
fkmkd gifUtyT* to the secoMl dnm, and
was sentenced to trantportaiiim. lA such
uoase^ though the panel had an interasi
to ob^i to the relevancy of the charge
itself in both indictments, it is evident
that it would have been very mudi against
his Interest to b^^t to the powers exer.
dsfd' by bis majesQr's advocate, or to tha
regularity of his proceedings.

Bell emi BaufiUy 1817.— Noihiag can
be drawn ftom this case. Bell fietded
malty h bath Macfinsitfs; and as to
I>oiis^ the diet was dettrted. It is
submitted, that ithas no analogy to tha
present questipii*

These are all ' the cases. selected \ij his
majesty's advocate, frd&i (he first uote of
{earch, fr^m 1.777 downwards. And it
IS 'obvious, that none of ^hein bave any
unalogv to the case, except those of ilfmtf-
hqa^aomeivilkf and^ Bim^ and, even at
"to uiese^ the explanations appearing on
the ho^ of them are quite su%ient to
' aeeduni for ^(ke o^edion hot heh^ ttateds
whieh, ifter, all,-is the utmost thft can be
'drkwuditeifthenK '

The additional obtes mentioir fitar

liQtel Nieokmi, 1711^Ptttel ifi this
c^e had notpkmkdn

d4lJ

J^ AdmhAdmng unlawful Oaths,

A. D. 1817.

[242

Pafndb BamltoH, 1714.— Hie fact it
not diattnctly stated, nor does it at all
appear what beetme of tbe caie. Tbouffh.
the minute and interiocutor fpeak of the
^ new mdictment raised/* this may, in
truth, refer meniy to the notice of the
lord advocate of an intention to raise a
new indictment immediately thereafter.
Withoat seeing the dates, it is impossible
to draw an J correct inference. Besides,
though it is mentioned in a note that in-
formaiions had been given in, it does not
follow that the panel had pieaded. The
iafcTOiations might be on the form of
citation, or on other points not necessarily
implying that there nad been a plea to the
inoictment.

In one view, however, this case is, with
many others, a fiOal precedent against the
doctrine maintained oy his majesty's ad-
vocate. For it will be observed, that Mr,
Demean Torbet never thought of maintain-
log, that, after pleading, the service of a
new indictment ipio facto put an end to
tfie ftrs^ or that it conld be abandoned
otherwise than by an express interlocutor
of the Court. .

Jbaktm Femk and others, 1720. — This
ease is nearly on a footing with the pre*
ceding. It does nol appear when the new ^
indictments were raised. But it does dis-
tinctly appear that his majesty's solicitor
and adTocale<depute of that time did not
inu^ne, that he had any power to abandon
the first indictment otherwise than by a
motion to the Court; and an express ii^
terlocotor was accordingly pronounced.

Jama IfigUs, 1720.*-ranel had not
piaaded.

This is an analysis of the whole cases
founded on by his majesty's advoeate.
And the Court will now see, that there
' are none bearing even the appearance of
analogy, etcept only, li^, Hamilton in
1714; 2nd, Eecnie, kc in 1720, the- cir-
cumstances of both of which are impeiv
fectW known ; drd, Mendham in 1804, in
whiSi boA indictments were found irre-
levant; 4th, Somerville in 1818; and,
5th, Horn in 1813^ who at lut pleaded
guilty, and sot the libel rastrfcted to the
charge vHudi only subjected him to an
arMtrary punishment.

That it would be for the Court to judge,
whether there is any thing in theib caaes^
picked out of the pra^e of more than a
etmary^ to oyertttsn the established prin-
ciple of law^ which was explained .In iht
debate, and is laid down bj the fiist
authority on the subject, that after a psiael
has pleaided^ the lord advocate h^ no

Eto abandon tiie indictment, except
toess motioii to the Court ; and that
annot doit expnakf^ stilMesscftn
' he doit mrtaal^, or bytsip^iarfm. '.

>4My.That, annexed hereto, there is the
whole, s^aisk of ibe recorda from the 1st
VOL. XXXIU.* ..

January 1 777, downwards ; and that ftom
that Hst, the Court will perceive a much
atronger practice, by which the lord ad-
vocate finds it necessary to move the
Court expresdy to desert the diet, inti-
aoatiagai the same time, tliat he intends
instantly to raise anottier indictment.
And more particularlv, there are many
cases in which this is done after the panel
had pleaded.

Cummkif against LessUe, 1785.— Deser-
tion after interlocutor of relevancy, y

WaUer Ro$s, 1786.— Had pleaded not
guilty.' .Diet deserted fro loco et tempore.

Brown and MNab, .1793. — Desertion
after interlocutor of relevancy, expressly
for the purpose of serving a new libel.

Charki Sinclair,* 1794.— Diet deserted
after relevancy found.'

Qamn &tnpton, 1811.-7Diet deserted
after interlocutor of relevancy.

. These are cases in which the panel had
pleaded. There are many others in which
the recdrd bears a desertion pro loco et
tempore, for the purpose of immediaUly
serving a new libd.

David Dalgleish, kc. 1780.

John Grant, 1783.

William Tenant, 1789.

Thomas Wilson, 1790.
' Jacob Tait, 1795.

O'Neils, 1796.

UrquharU, 1797.

Kirby, 1799.

Richard Mendham, 1800.—" Diet de-
serted before pleading, as the advocate
stated he meant to serve a new libel this
qfternoonJ*

Clark and Brown, 1802.

Monro and M'Farlane, 1809.

■ ■

That from this evidence of practice, to
which may be added all the cases in the
additional notes, it is humbly submitted,
the inference is irresistible, that no such
principle ever was recognised as that
maintained by his majesty's advocate, that
by executing a new indigtm^nt, a previous
indictment to which the panel had pleaded

J's ^pso facto extinguished. The law has
leknowledged no such power in the lord
advoeate^ and it is as little sanctioned by
any. practice. On the contrary, the uni-
Ibcm practice, with the exception of a
few. straf^liog instances, all since the
year 1904, and all but one since the year
1812, is directly the i-everse, the lord
yd^ocate having always thought it ne«
i6cluary expre^ly to move the Court to
idesert the diet.

• That on the whole, it was humbly sub-
taitted, that this search into the practice
instead, of supporting the plea of his
majesty's advocate, founded on a mere
allegation of practice, in opposition to

♦ 3 How. Mod . St. Tr. 777.

243] 57 GEORGE III.

the principle of law, tends very strongly
to support the plea of the panel, and to
shew trie incompetency of the proceeding
here objected to: That if there were
nothing more to be stated, it wonld be
enough, that between the year 1720 and
the year 1804, there is not one example of
a second indictment raised after a panel
had pleaded to the first, and before a de-
sertion of the diet by aathoritjr of the
Court. The case in 1804 has be«n ex-
plained ; and it will be for the Court to
judge, whether a practice, which -really
rests on one, or at the utmost itoo cases in
1813, can make law, in opposition to
principles otherwise clearly esublished.

Trial of WUUam Edgar

L344

COURT OF JUSTICIARY.

May 26, 1817.

FreKnt.

Rt. Hon. DaM Boylty Lord Justice Cleik.
Lord Hermand.
lord GUlies.
Lord PUmiUy.
hord Re$ton.

Cowuelforthe Crown.

Rt. Hon. Alexander Maeonockie, Lord Advo-
cate [afterwards a lord of Session and Justi-
ciary, with the title of Lord Meadowbank.]

James Wedderbum, Esq. Solicitol^eneral.

H, Home Dnmmondy £sq.

H, Warrender^ W. S. Agent.

Coumelfor WiUiamEtigar.

John Clerky Esq.
Geo, Cramtotm, Esq. '
Thot. Thomtoni Esq.
James Moncrieff", Esq.
Francis Jeffrey, Esq.
J. P. Grant, Esq.
Henry Coekbum, Esq.
J. A, Murray, Esq.
G. W, Boyd, W, S. Agent.

William Edgar was placed at the bar.

Lord Justice Clerk. — ^Your lordships re*
member die obieaion that was stated in this
case. You ordered minutes to be giTen in fot
the parties, stating the practice relative to the
objection. These are now upon the table ;
and you are to say how they are to be dis-
posed of.

[Here Mr. Cranstoun* was beard at , consi*
derable length in support of the objections
to the competency of the indictment.]

Lord Gillies. — Before the prosecutor begins,.
I want an explanation of a point. The case of
Ilaniiltoh has been mentioned, in which Dun-
can Forbes was prosecutor. That name must

* No report of this speech has been pro-
cured.

excite in vs xiU peculiar attention. On page
5, of the. joint minute of the parties, it is.stated
by the public prosecutor, -^'Mr. Duncan
Forbes, his majesty's advocate, consents 'to the
deserting of the diet against Patrick Haaulton,
younger, of Green, upon this libel'' (I under-
stand informationa had been ordered, which
raises a presumption that that libel had been
pleaded to), ** without prejudice to him to
insist in the new indictment raised at the in-
stance of his majesty's advocate against him.*'
What I want to know is, whether this new in-
dictment raised was served i In looidng at
the preceding case, ** but prejudice to him to
insist in his other indictment already raised
and executed,'' the insertion of ^ exeaUed/* in
one case, and the omission of it in the other,
excites suspicion that it was not executed in
the other. It is mentioned in the one, and not
in the other.

Mr. Drummond. — My Lord Justice Clerk ;
It appears to me, that there are two points for
consideration in this case. The first is one of
considerable importance, the other is of no im-
portance at all as ofiecting the paneL The
first to which I allude, is, whether it be com-
petent, during the dependence of one indicts
ment to serve another. The consequence
would be that, if this be incompetent, the
service of the last indictment in the present
case would be a nullity ; and the panel would
thus obtain a ftirther delay, to allow time for
serving it over a^n. The other point ia,
whether, after au indictment has been pleaded
to (to use an expession which has been more
dwelt upon in ttie present case than in all the
former practice of the Court), it can be aban-
doned by the prosecutor, without an act of the
Court, or whether it can only be got rid of
with the authority of your lordships, lliia
second point is of no importance on this occa-
sion, and is, in truth, a mere question of form ;
for, whatever your finding should be, the retnlt
will be the same to the panel at the bar.

Hie first point, however, fortunatdy appears
to be attended with no : difficulty ; for it is
settled by constant and inveterate practice.
I shall not detain the Court by repeating what
is stated in tKe printed minutes, where your
lordships have before you not. merely theftve
cases to which only the learned gentheman has
thought proper to allude, but a series of other
cases of which nothing has been aaid. There
are, besides, the cases from 1711 to 1T20, in
the additional part ojf the minutes, which are
completely in point upon this part of the sub-
ject, proving tnat any given number of. indict
ments may subsist against a pand at one and
the same time. Even the case of -colonel
Chayteris, of which so much has been sidd on
the bther side of the bar, may be reforr^ to in
support of this doctrine. As quoted ^by Mr.
Hume, it establishes a c(nn|riete precedent,
that it is competent to raise at oacci and con-
sequently to execute, a number of libels against
an individual accusing him either of the same,
or of fifty different crimes.

345]

Jm AAmnitUring utilat^iil Oaths.

A. D. 1817.

[246

The only tvUe of law as to the defence of a
panel, in sndi circomstancea, to wbich onr
practice seems to pa j any regaid, and it is
snfiSeient for ereiynseiu] purpose, is this, that
the proeecator must make bis choice, before
flQing to trial, as to the indictment* upon which
le is to proceed against the panel. Bat, in
the present, of all cases, I do not know to
what usefel pnrpose it can tend to enter into
this discQSsion at all ; for if, as happens here,
there is one and the same crime charged, and
the same particnlars are mentioned, the de-
fence also will be the same under the different
libels.

Besides, it will always be remembered, that,
l>y the Tiew of the law which I maintain, the
first indictment is already extinguished. For
either the prosecutor does virtually abandon all
prerious indictments, by executing a subse-
quent one, or the Court will, as a matter of
coarse, desert all diets but that in which he
desires to appear. And here it is upon the
record of the Court, that he has abandoned the
first libd; and it remains for the learned
gentleman to show by what proceeding it is
possible to keep the prosecutor in Court longer
thao he chooser to remain. What I state is
the settled practice in a multitude • of cases,
which are ot that description that they cannot
appear in the books of adjournal, or form any
entry on the record. When a panel forces on
his trial by means of the act 1701, and the
prosecutor does not bring on the trial on the
first indictment, but new criminal letters are
raised against the panel, these letters must be
serred before the expiration of the first indict-
ment, otherwise the panel could not be de-
tained in prison. Now, in all the numerous
eases of this descriptiou, it is plain that two
libels are in existence against the panel at
once, without the diet ever being called, or
the panel even brought into the presence of
the Court, and no objection has ever been
made to such a proceeding.*

* I was not aware at this time, that on one
occasion it had been thought worth while to
state an objection to this form of proceeding.
The circumstance is detailed in the following
note to Mr. Burnet's work, page 367 : '' But
is it necessanr, in point of form, that the diet
he called and simpUcUer deserted, as the act
ordains, in order to entitle the prosecutor to
the benefit of new erimmal letters r In practice
it is not held sO ; and justly, for though not
calling the diet be a virtual desertion of it by
the prosecutor, the prisoner can sustain no
pitjudice by this form not being gone through.
It being still competent to recommit him on
new criminal letters being served. Accord-
ingly in the case of Welsh, who had run his
letters, and on that ground petitioned for libe-
ration on the lape of the first forty days, but
who had by this time been served with new
criminal letters. Lord Justice Clerk (Hope),
' on advising his petition^ pronounced this inter-
locutor: ^28th October 1806| having con-

In the case of colonel Charteris, quoted by
the learned geddeman who precedea roe, the
discussion was not as to the running of the
tmfticur, and the subsbtence of several indict-
ments at once, as he seemed to suppose, for
that was taken for granted to be lawful ;
neither .was it imagined, that on having pro-
ceeded to the trial of one indictmeat, all the
others were not thereby extinguished. like
question was, whether the panel should not be
informed, before being called on for his de*
fence, to which of several indictments he was
to answer. There was no doubt as to the
competency of raising and executing them all.
No person ever entertained a doubt upon that
subject. The demand made was, that before
the trial the panel should be informed on
which indictment the trial was to proceed ; it
not being admitted, or so well understood as
now, that the last service extinguishes a pre-
vious libel. It is unnecessary to say more
upon this first point; for it is settled by the
established practice of die Court, that there •
may be fifty indictments subsisting at one
time, if, before the panel be made to answer
or take his trial, they be all reduced to one.

The next question is as to this doctrine of
pleading to an indictment, about which the
learned gentleman did not choose to speak by
itself, but only in conjunction with the other
point, and about which I should have been
glad to have beard what he could say ; for I
have not yet obtained the remotest glimpse of
what the idea of ** joining issue,'' as applicable
to the case before the Court can rest upon.
The form of interrogating the panel, as to his
guilt or innocence, before naming the jury, is
one of the most immaterial, I might almost
venture to say, useless steps of the whole pro*
ces&. In England, a panel confessing may be

sidered the foregoing petition, with the
letters of ihtimation and execution herewith
produced, in respect that new criminal letters
have been raised and executed against the pe-
titioner, and have been laid before hb lord-
ship, along with the petition for his majesty's
advocate, for a warrant to detain the petitioner
in prison ; refoses the desire of this petition,
in so far as it prays to set the petitioner at
liberty ; reserving to the petitioner the benefit
of any argument he may oe advised to found
on against being subjected to a new trial, in
consequence of the diet not having been de-
serted timpUcUer on the 27th current, as he
alleges it ought to have been, under the
act 1701.'

^* Accordingly wlien the trial came on, on
21st November following, the prisoner founded
tn/er alia upon the circumstance of the diet not
having been deserted simpUciter when the diet
of the former libel fell ; but the Court held
there was no necessity for an interlocutor to
that effect, the non-appearance of the prose-
cutor being a vtrtual desertion of the diet, and
entitling him to serve new criminal letteiS| in
terms of th$ 5tatute."-^H. H. D.

247]

57 GEORGE Ul.

Trial of U^illiam Edgar

{fi48

convicted and punished by the Court without i
the intervention of a jury; and, if he remain
silent, he may, in certain cases, I believe, be
presumed guilty; and, in others, till very
lately might have been punished by a barbarous
sort 6f death.* Now, in all this, our praotiee
is essentially different. The Court are no more
judges of the fact, in a case of confession, than
where the proof rests npon an^ other species
of evidence ; and silence is, in all cases hor
inanely interpreted into a plea of not guilty,
the prosecutor being bound to prove his charge
unless expressly admitted by the accused in
presence of a sworn assize,

I have looked through our law books, and,
from the beginning to the end of all the au-
thorities of the law of Scotland, there is not a
word of the doctrine of litiscontestation to be
found in criminal proceedings. There is no
such word used Ij.''^ George M'Kenzie, nor
by Mr. Hume. There is nothing in Dractice,
or in principle^ to give it support, and the in-
troduction of It is contrary to the first princi-
Sles of our criminal law. Upon what does the
octrine of litiscontestation rest? Upon an
implied bargain or presumed judicial contract
between 'the liti^nts. But, is that a doctrine
which can be introduced here? Can a man
make a lawful paction oonceming his life or
his liberty? Litiscontestation has no sense or
meaning in this place. I have not been able
to find the word, even in a pleading, except in
one case reported by M'Laurin ; and I wbb
the doctrine for ever expelled from the de»
liberations of this Court.

No party has at present 9.ju$guaUum in any
thing. To what could the panel here acquire
a right? To his own plea? certainly not.
Of what benefit could that be to him t If he
plead guilty, it may to the prosecutor; if not
guilty, is that of any use to himself? Is it to
any act of the Court he has acquired a right?
There is no act of Court in this instance.. If
there had been an inteiiooutor of relevancy, I
should at least have understood the aigument,
but we have not yet advanced so far. This is
the only ground on which I could conceive the
•argument of the panel to have any semblance
of reason. But, unfortunately for the panel,
in the case I have alluded to in M*Laurin*s re-
ports as being the only place in which mention
IS made of litiscontestation, there was an in-
terlocutor of relevancy, and yet no regard was
paid to the argument by the Court. The case
IS that of James Archibald, in February 1768.
The petition in support of which the ide^ of
litiscontestation among other arguments was
there advanced, was, that the Court could not
desert a diet, pro loco ei tempore idlber an inter-
locutor of relevancy ; but the Court deserted
the diet in terms of tlie prosecutor's motion,
and granted vrarrant for recommitting the
panel.

I have to submit that the same consequence
must follow to the panel, whether you are of

* i Stark. Crim. Plead. 340.

opinion that the libel is abandoned, or whether .
you to tlirough the form of declaring it de-
serted. The Court cannot acquit the panel of
thechar^ against him. Your lordships are
not the judges of the fact AU you can do is
to declare the diet deserted ; and the conse^

Suence to the pauel is the same, for he may be
etained in prison and indicted again next day
for the same offence. To constitute the Court
judges in a previous question as to the pro-
priety of the prosecutor's conduct in insistins
m, or abandoning the libel, would be attendea
with the most extraordinary consequences, for
whidi it cannot be supposed that the panel's
counsel are prepared to argue. It would in--
troduce a course of procedure hitherto un-
known, which, if it bad been introduced in
other tiroes, might have led to the superseding
of the jury altogether, and which must in any
times invest the Court with the office of the
prosecutor.

It was said that the Court has a discretioa
to exercise in deserting the diet; that it may
do it simpliciier^ as well as pro loco et tempore^
if good grounds be shown ; and that the power
<^ abandoning the indictment contended for
takes this discretioa from the Court. Mr.
Bumet,* contrary to this statement, howwer,
savs that the prosecutor is not bound to show
why be moves for the desertion of a diet pro
loco et tempore^ and thai the Court must grant
any motion which he makes to that effect. But
I am quite willing to admit that Mr. Bnmet
has stated this doctrine somewhat too broadly^
and that he has quoted in too unqualified a
manner (as he not unfrequently does), the im-
port of a decision to which he refers in the
note in its sup^rt. I perfectly coincide with
Mr. Hume's view of the subject, that thou^^
the prosecutor cannot be compelled to discloae
his reasons for his motion to desert pro loco el
temporcy the Court have a discretion which, if
an extreme case be made out, they may exer*
cise by deserting the diet simpUciter ;\ thou^ n
more difficult question remains behind, to dis-
cover what benefit the panel can possibly de-
rive from that proceeding. All this, however,
relates to the case of the prosecutor moving
for a desertion pro kco et tempore^ whereas
here he has made no such motion.

I am not contending for a povrer inherent
in the public prosecutor, without a remedy for
any evil that may follow from it. All I say is,
that the panel is already out of Court as for
as the first libel is concerned, and that he has
nothing more to ask for by desertion of the diet
of that libel than what has happened by its
abandonment by the public prosecutor. Where
then, it may be askea, is the remedy in a case
. of oppression ? The answer Is, that by serving
a multiplicity of libels and successively aban-
doiung them all, the circamstances of oppres-
sion may be stated to the Court, if there be
any to complain o^ when, by insisting on a
new indictment the panel shall at length be

• Page 310,

t Supplemonli 237.

3491

Jbr AdminitUring untawfid Oaika

A. D. 18lt

BHMr

called opon to answer at llie bar ; or the panel
may have liis grieTances previously discussed
by presenting a petition* But it will always
be reaembrnd, that it is his own fitult, by
neglecting the remedies of the act 1701y if his
imprisonment shall in the meantime be pro-
longed a single day. And it is not easy^ there-
lore, to conceiTe m more harmless application
that can be made to a prisoner than tne service
of a series of indictments, whether relevant or
not, that are never insisted in, or to imagine
bow any evil or oppression can arise from such
a proceeding.

in the present instance, and in the present
BiMft of me business, there is clearly no case
before the Court from which the panel has to
ask rdiei^ or of which he can complain, or on
which be can be heard at alL The learned
counsel for the panel are entitled to come for-
vraid and state their hardships, if any shall
occur to their fertile fancy, and they will be in
order in doing so, when the panel shall be
broQght again to the bar, and the prosecutor
shall insist in a charge against him. It will
then be for the Court to consider, whether a
case is made out that calls upon Uiem to desert
the diet sinrpKciiter, rather than pro loco et tern-

C\ ; and, after all, if your lordships should
e recourse to this unusual proceeding, I am
yet to learn what be lefits it would confer upon
a prisoner more than the ordinary species of
desertion pro loco et tempore^ if obtained with-
out the consent of the prosecutor. On a point
on whidi Mr. Hume has spoken with so nrach
caution and reserve, it does not become me to
say any thing. For every evil there must be a
remedy; and, for all injustice there must be
redress in the common law powers of this su-
preme court; but the question is, whether the
provisions of the act 1701 are not intended to
meet every case that can occur, and whether a
case can possibly occur, in which the Court
would be justified in adding or attempting to
add, to the safeguards of that law.

^e have heard that Mr. Hume's authority is
against us in this part of the case, and that is
an authority to which we are all disposed to bow.
But I must confess, that I have not been able
to discover in any part of that learned author's
work, such a meaning as has been imputed to
bim. I admit the justice of all the remarks
that have been quoted. But your lordships will
observe how Mr. Hume was quoted. There was
nothing referred to as to his opinions of the
prosecutor's power of passing from, or aban-
doning his own instance; but passages were
quoted from diflerent parts of tne b<K>k as to
Ibe desertion of the diet. I must, however,
beg your attention to those passages in Mr,
Hume's woriL where he speaks of the prosec^
tor's power to abandon hu instance ; thus, he
^ys,* ^ at any period before remitting an in-
dictment to an assize, the prosecutor may
abandon a faulty libel, and raise another in a
more correct and better form." I am aware

• Vol. 3, p. 30C.

» « • .

that dkis is not an authority directly In point,
as the author is there only speaking inci*
dentally on this subject, and we have seen how
easv a matter it is to take detached passages
without reference to the context and general
bearing of the author's meaning, in order to
support a particular purpose. Let us then see
what Mr. faume says vrMu treating ezpresriy
of the prosecuto/s iiistance. ^' ^ the Lord
Advocate's instance is thus in one sense inde-
pendent of the party injured ; so it is also in'
this other sense, that it is entirely under hie
own management and disposal as to the sea^
sons and occasions when, or the mode wherein,
or the effect to which it shall be used. For in
none of these points can any individual, nor
even the supreme court, pretend to any con-
troul or superintendence of him; as indeed,'^
marie the conclusion, ^ as indeed to allow any
such interference on their part, would in sub-'
stance be to make the judges prosecutors^ who
ought to be kept free as &r as possible of all
previous impressions of the case."*

I submit, that if these passages be oomparecl
wiUi those quoted on the other side, whin last
rdate entirely lo the desertion of the diet, and
do not contain a word about the proseoitor's
power over his instance, there wiu be no dis-'
crepancy or contrariety found between them.
Deiertion of the diet is an act of the Court Y
but as to the instance, the prosecutor has that
entirely in his own hands. Your lordshipe
cannot keep the prosecutor in Court a minute
longer than he chooses ; and the panel cannot
prevent him from withdrawing, mr he has all
the bene6t from that proceeding which he can
derive from any desertion, and receives no
harm from it

As to the MiKie of 15 dajrsy if it be compe-
tent and proper to serve one indictment dunng
the currency of a previous one, that question
is at an end. The mimim of the second must
run from the date of the service^ else the power
to serve the second would have no meaning
whatever; and accordinglv this will be found,
on inquiry, to be agreeable to the praotioflKi
Your lordships will remember the ongin and.
nature of the iMftiM of citation, for an ettenp-
sion of which the panel is not attempting to
plead any equitable claim. The vJme aie
not founded upon statute but upon an equitii
able practice. No case is here made out in
equity for a delay; and it certainly will not
be said that there is any practice against the
running of the second tndMnc before the deses-
tion of the previous diets. If it be competent
to serve three or four indictments at once, it
must follow that the Mmm of the whole wmif
run at the same time. But at all tiiase,.befoie
a trial is brought on, the Court wR grant sooh
delay ka may appear proper in the drcum-
stances of ^ny particufaff case.

' A complaint has been made that the panil
has been embarrassed with diffarent hbelipin
preparing bis defence. To this it is a svflkient

« Pag^ 215.

sftU

57 GEORGE HI.

Tri4d of fViUiam Edgar

i:362

answev, that he may establish this fact of em-
hamuBsmenty if he cany as the grounds of a
iBOtion for delay (which appears to be consi-
dered a great advantage to the panel, and is
in fact the real object of this discussion) sup^
poaiag him to succeed in persuading your
lordships ibaX the first libel is not abandoned.
But I nave already said that there is no room
here for any statement of hardship ; the se«
cood indictroept being the same as the first,
with the omission of two or three lines. This
<l^jection, if it existed at all, would apply with
tenfold force to the common case of au alter-
i^tive charge of two crimes in tlie same libel,
or to the ease of a panel served with several
Ub^s for as many different offences, when he
would have ten times more difficulty in the
preparation of his defence ; and yet it could
w>t be pleaded to be incompetent to make
such a cnaige, or to serve different libels at
once for different offences. This very year an
ipataiice occurred where the same individual,
John Campbell, was tried on two separate
Ubels on two consecutive days^ and convicted
OB both.

LordJtMice derk,-—! tried a man on two
different libels upon the same day last circuit.

Mr. Drtmimond. — ^It was observed, that in
ibe prooeedings of the Court of Justiciary in
points of form, many cases have occurred un-
worthy of being followed as precedents, and
namv examples of loose and irregular practice.
My lord, I cannot allow this to pass uncon-
iradicted. I have never had occasion to make
•fiieh a remark myself, or to hear it made by
oUiers : 'On the contrary, I have always looked
up to the practice of this Court, as a model of
aceuracy and correctness in points of form. If
the learned gentleman go back to bad times, he
nay find some things not to be imitated, but not
certainly in modem times when the practice
of the Court has become more mature and
perfect.

I cannot sit down without ofierins a few re-
anarks upon the cases stated in £e printed
minute for the panel. It is said, in the second
page, ^ Tliat a search from the year 1777
idownwaxda bad first been made, and the result
iiad been communicated to the panels some
4ays ago : But that after this a search had It
«eema been made, which appears to go back
to the beginning of. the last century ; and the
«Catement of the oases so found was only com-
aiuaicated kte oa this day. That on the part
"^if the panel itijaay now be assumed, that the
Court W before it every, one example which
liis majesty's. advocate has been able to dis-
•eorer,, ia the.course of more than a century ^ of
any. proceedings which be thinks calculated to
>a«pport the measure which has been adopted
in this case, or .to meet the objectioq founded
on the cleai^st principles of law.'' This is a
▼ery erroneoos statement of what has been
dene in point of fact. Our search began in
-t777f Hmd prior to that there Jvas lui aeaich
at all. The cases, stated before ao^ not the

result of a search ; and the panel's counsel
are not entitled to say that no other cases can
previously be found, for the only search made
was since 1777.

Upon the case of Mendham, it is observed,
that ** in that case the panel had cleariy no
interest to make the objection, but quite the
reverse.*' I do not think that the circumstance
of a panel having no interest to state an objec-
tion is at all a sufficient reason to exclude a
case from being quoted as a precedent, as
seems to be assumed. It is the duty and the
practice of the Court to look to the correct-
ness of the proceedings at trials, whether ob-
jections be made or not : A strong example of
which lately occurred in the case of Bell and
Douglas, where, though the guilt charged was
acknowledged, the indictment was not allowed
by the Court to go to an assize. Similar
examples of the discharge of this duty by the
Court must be familiar to us all.

It is said, however, that in this case of
Mendham, the panel had no interest to state
the objection. But, we must not look to the
result in judging of this interest, but to the
circumstances in which he stood at the time
for making the objection. How could he know
at that time the result of the obiection to the
relevancy ? and until the Court determined as
to that, It was impossible that he could know
whether it was his interest to make this ob-
jection.

If you turn the page, your lordships wilt
find a complete shifting of the argument of
interest, for, in the case of Somerville, it is
there maintained that the panel had no interest
to state the objection in question, although he
was found guilty and convicted. He had an
interest, it would appear, to state objections to
the relevancy of the libel ; for this was done
by some pf me learned gentlemen on the other
side of the bar who defended him ; and in
consequence of the objections so stated, the
indictment was abandoned, and a second in-
dictment was brought* He had, however, no
interest, according to the view of the case in
the minute for the panel, to object to the trial
and punishment, became the latter <' could not
exceed imprisoiimeni and pillory,^ Those re-
sults are not in general so coolly anticipated ;
but where did the learned gentleman who
wrote this minute find the law, that this is the
utmost extent of the punishment of perjury ?
and how did he lose sight of the fact ih that
particular case, that the panel was over and
above condemned to what was perhaps to him
a still severer fate, to pay ^150 of damages,
and the whole expenses of process? As to
the expense, he had only the ordinary allow-
ance bt two, or at most three, counsel. Here
there are a great many more. I do not pre-
tend to enter into tlie secrets of the giher side
of the bar, but appearances, at least, are
against the panel on this ground. The trial
again, it is said, could be merely put off for
1^ dayei4 Now, is not this all the panel asks
for in the preaeat case f and yet we are told

2531

Jor Adtrinistering unUn^ Oatht,

A. D. 1817.

I3ff4

that was the reason (he panel had no interest
to plead the objection in the case of Somer-
Tille ; and on that occasion it was said to be
as well to beconvicted now as 15 days hence
though in thik case the very idea of such a
doctrine is reprobated as quite untenable and
preposterous.

With regard to the case of Alexander Camp-
bell, it is saidy " This is not a case applicable
to the point at all. There was no question
about any new indictment, and the circum*
stance of the public prosecutor passing from
particular charges in an indictment, intending
or reserring the power afterwards to raise a
new indictment, is wholly immaterial to tbe
question." I conceiye nothing can be more
iu point than this. What is law as to one
charge in an indictment, must be law as to the
whole. My statement, I observe, excites ridi-
cule— ^but let it be answered. I repeat, that
whatever proceeding is competent for the pro-
secutor as to one charge in an indictment,
ninst be competent as to the whole charges ;
and that whatever he can do as to one of
several diarges, he can do as to one charge
standing alone. It will be observed, too, that
this proceeding took place in the case of
Campbell after the panel had pleaded not
guilty, though that certainly does not appear
to me a matter of so much importance, as it
cannot £ul to appear to the learned gentle-
men opposite from their views of this point
of form.

It is not disputed that the prosecntor may
afterwards bring another indictment on a
charge so abandoned.

It is next said, with the customary inaccu-
racy, ^ But at any rate it is humbly appre-
hended, that even this takes place only with
the consent of the Court, which is expressed

Sf the terms of the interlocutor of relevancy .*'
ow, there was no consent of the Court, and
there neither was nor could be any mention of
it in the interlocutor of relevancy. The inter-
locator finds the relevancy of the libel as
resiricUtL Tbe Court did not desert any diet,
and could do nothing but proceed to the con-
sideration of what remained after the prose-
cntor had withdrawn one of the charges.

Then comes the case of John Horn, who is
also said to have had no interest to make this
ol>|ection« He had an interest, however, to
ol]gect to the relevancy of both indicfments :
At least, a learned gentleman, Mr. Jeffrey,''
most have thought so, who was his counsel,
and made the ejection. Now I cannot see
how he had an interest in the one and not in
tbe otber^ delay being the object, and the only
consequence, of stating either the objection to
tbe service or the objection to the relevancy.
Id fkn. pase of Horn there were two charges,
uttering and selliog forged' notes; both of
which were ultimately £und relevant, Tbe
panel did not know till after the interlocutor
cfi relevancy that the prosecutor had a^y in-
tention not to insist on the first, which was a
capital charge.

liie case of Bell and Douglas we are tolA
has no analogy to the present question, because
^*BeU pleaded gidUy to both vuUctmenii ; and as
to Douglas, the diet was deserted.'* But that
cannot remove the case as a precedent, for 'the
panel certainly had an interest to state the ob^i
jection if he bad thought fit to do so ; nay, he
had a more than ordinary interest, having his
confession of the first indictment standing on
the record, whatever the prejudicial efllsct ctf
that circumstance may be to a panel. This
induciA of the two libels are proved in th&
case to have run at once.

With regard to the case of Hamilton, it is
said that there may have been only an intention
to raise a new indictment, notwithstanding
mention is made of the ''new indictment
rmteiJ' That will not do. It is impossiUe
to construe an indictment actually raised into
an intention to raise an indictment The re-
mark, that thd informations '' might have bean
on the form of citation, or on other points not
necessarily implying that there had been a
plea to the indictment,'' is quite unfounded in
tact. Before the Jurisdiction Act of George
II.*. informations were given in in eveiy c^e,
that being a form which could not be dis-
pensed with. Those informations contained
tbe statement of foots ux>on which the panel
chose to rest his plea of not guilty, as well as
the objections that occurred to him in point of
law to the relevancy. In place of this cum*
brous proceeding, which had become a grie-
vance and an obstruction to the course of
justice, that excellent law substituted the
written defences, which, by a slovenly practice,
are often neglected to be lodged, though they
are in fact one of the most important steps of
the whole process, and might, perhaps, super-
sede altogether the unmeaning and embarras-
ing ceremony of entering a plea before the
Court, which may be immediately afterwards
retracted when the Jury are sworn. The in-
formations were in fact at that period not
merely pleadings on the relevancy, but also
defences, or explailations of the plea of not
guilty ; and it is, therefore, most erroneous to
say, that though informations had been given
in, it does not follow that ''the panel Aocf
pleaded:^

As to the case of Feroie, the minute stated,
'' that it does not appear when the new indict-
ments were raised.'' But your lordships will
see in the prosecutor's minute, page 6,. that it
was the very same date upon which both libels
were called, consequently they must have been
both previously raised, and must^have sub-
sisted together; and the MuddB of the last
must have run notwithstanding the existence
of the first, which is all that is contended for.
The word " raised " in this place plainly in-
cludes and implies " executed, for tbe diet of
compearance could not have arrived unless
this had been the case. That the lord advo-
cate, therefore, has not power to proceed as he
■ — >__^ "

• • Stat; 20 G. 2, c. 48.

9561

ffl OEOROE Uh

TryUqfWUUamEdgQf

(356

liM doM on this occasioDy is % oonclntion
whioli cannot be diawn from this, any mote
Chan from the other oases that have been men-
tioned ; and tbeie is no authority whatever for
the statement, that ** it was not imasined at
that time that he had any power to abandon
an indictment otherwise than by motion to the
Court.''

The other cases in the minute for the panel
«ra not in point ; but they serre to shew the
practioSy that diets may be deserted pro loco et
iempote even after interlocutors of relevancy.

Lord'AAfocate, — ^It is unnecessaryi and it
would be doing little justice to the argument,
if 1 added one word to what has been stated.

Mr. DruimmmtU — ^I omitted to observe, that
the case of M^Renxie, which Mr. Cranstoun
tjnoted from Mr. Hume, vol. iiL page 10. seems
to have been quite misonderstOKod. It ob-
viously relates to a perfiMtly different question
from any thing now before the Court. There
the prosecutor moved the Court to desert the
diet in absence of the panel, contrary to the
great leading principle, that no oroceeding can
•take place ra absence except nigitation ; and
the Couft continued the diet (as fugitation
was not moved for), till the panel should have
tin opportunity of showing why he did not
tittend.

Mr. Ckrk. — ^I am sorry it has fallen to me
lo answer the other side, for Mr. Cranstoun
bad an opportunity of considering the case :
I had not. I have but a general recollection
of what passed last day. But I shall submit
a lew observations upon what has been stated
by Mr. Home Drummond.

If your lordships think that the practice is of
considerable importance on this point, I shall
begin with offering some remarks upon the
precedents which luive been cited. Your lord-

. ships have heard quoted a great many instances
in which the public prosecutor thought it in-
cumbent on him to get quit of one indictment
before he directed another to be served. You
have a great number of instances of this prac-
tice by the most learned persons who have
filled the situation of his majesty's advocate ;
and it seems to be the natural and necessary
consequence of th^e opinions which your

' lordidups have firom Mr. Hume in several
different passages of his woik. I shall refer
your lordships to that practice. It is one
which has been discovered in consequence of
a very anxious search into the records for more
than a century. We have been told by Mr. .

. Home Drummond that there has been no re«
gular search into the records of Justiciary. I
understood that these records had been very

' anxiously searched; and, whether so or not,
I am entitled to assume that neither party
can . suppose there are anjr other instances
in the records. than those whidi have been laid

. before your lordships. These are sufficient,
at least as specimens of the practice ; and I
must retain my private belief, that whether

he is or is not entitled to say there has not
been that sort of examination which may be
properly called a search, yet that there was
such a search as to satisfy your lordships of
the eeneral nature of the precedents to be
found in these records.

Assuming this, what is the result? Upon the
one hand, you have a great many instances
indeed of first indictments being abandoned —
the diet being deserted — ^where the libel had
been abandoned by the public prosecutor
before the panel had pleaded — which we never
disputed his title to do. We never hinted,
that he has not as good a title to abandon as
he has to raise and execute an indictment, if
the panel has not been brought into Court, and
parties have not joined issue. In a certain
number of these instances, you have evidence
of the opinions of the learned persons who
conducted the business, that this is a proper
and necessary mode of proceeding, because,
by proceeding in that way, they put themselves
to some more trouble tnan according to the
mode now recommended by my learned friends.
This is a practice as to whidi there could be
no contradiction, for it is admitted, that« what-
ever is right or wrong in the present debate,
the prosecutor may abandon the old, and raise
a new indictment. This is a practice which
can only show the opinion of the public prosecu-
tors — most learned men — and also their opinion
of the way in wliich the Court consideredT these
matters. It is impossible you could have the
judgment of the Court upon all of these points.
What are the proofs ? Except in one case, it
is not pretended that the point- was brought
before the Court at all, so that there is no
judgment upon it. And as to that case, all
that was said was, that there was some conver-
sation, but no record of it — a conversation
between the learned gentleman and one of
your lordships. And though I attended every
diet as counsel for the panel, I certainly do
not remember that conversation : and that is
all that is brought forward as a precedent. It
is a jest to say it is a precedent. It is incum«
bent upon you, and you perform the duty as
well as you can, to attend to the regularity of
your proceedings ; but where the two parties
are both keen, zealous, and anxious, all the
zeal of the public prosecutor on the one side
to obtain justice for the public — all the acute-
ness upon the other side to state every thing
for the defence of Uie panel, in so far as useftil
to him, it is natural for you to take for granted
that every thing is right, if nothing is menti-
oned as being wrong. Therefore, if an cAjec-
tion be not ^ted on either side, and do sot
appear from any innpeetion of ^e record, I
submit to your lordships, that to stale a practice
of this kiiid as being of any authority wnat^r,
is one of the most violent attadE^ upon n f«igu<*
lar system of law that I have ever beard of,
either in this Court or in any other. I was
counsel for Somerville. I dare say I attended
to his interest as weU as I could. He was
anxious enough, T dare say, to escape convic-

2571

Jqt Itdminutering unlawfiil Oaths*

A. D. 1817.

[238

Uon of tlie crime of whidi he was accused — the
crime of perjtiiy. Bat, noiwithstandiDg my
situation, I certaioly did not consider it of
tbBLt great eminence which the pablic prose-
cutor seems to think it was. I did not consider
myself as acting as a great legislator upon
the occasion. Nor did Mr. SomerviUe on
the piUoiy think he was dispensing new law
ftr me government of your lordshijps. What
was done was done with consent of SomerviUe,
and without objection.

Tour lordships watch orer the regularity of
proceedings — but if the panel consent to any
particular measure, and your lordships do not
observe that it is irregular, can that affect the
proceeding in law, and a most important prin-
ciple in law f What I apply to the case of
&)menrille may be applied to every one of the
cases. If they coula nave produced one pre-
cedent—one case in which the panel, consi-
dering it to be necessary for his defence, or of
any use to him, had opposed a proceeding of
this nature, and you had overruled the objec-
tion, I should have considered that precedent
iforth all the rest upon both sides of the

aoestion. No such precedent has been pro-
uced. And because perhaps a hundred pan-
els have been brought to the bar, and a few of
them have allowed this proceeding without
objecting to it, possibly without having an
interest to state an objection, 'and possibly
without being aware objections might be stated,
as junior counsel are often for the panels, they
cannot be considered as prec^cnts. It may
be for the interest of a panel that his trial should
not be delayed ; and mstead of putting off the
time of the Court with the objection, and re-
alining longer in prison,, a panel may often
wish his trial to proceed, where, had his counsel
oflTered the objection, and supported it before
tbe Coart by argument, the Court would have
siren it attention, and seen its propriety and
mce. But a panel, by delay, may also incur
fiirther expense, to which he will naturally be
mveise. This person, Mr. SomerviUe, was
not one of those mendicant clients, of which
ihexeare numbers in the Castle at this mo-
ment. He was ..not in the situation of the
panel at the bair, whose counsel, from a sense
of public duty, are putting him to no expense
what^rer. t, for one, am proud of my situa-
tMm/ and every one of my learned friends
entertains the same feeling. SomerviUe was
ppt.ta a great deal of expense in the manage-
nent of his case ; and how could it have served
Mm to delay his trial from day to day ? It
would not have availed biim. There were Mr.
ISiQertDn and myself, and perhaps another
counsel at the bar at his expense. There is
no doubt it was his wish to go to trial upon
that day.

Lord Jtutiee Clerk. -^I see from my notes
yea did move the Court to allow the expenses
of preparing for the defence of the panel.

Mr. Clerk, — I feel great obligation to. your
)x»rdahip, and' so mi&st my client the panel,

VOL. xxxm.

for your mentioning this circumstance. That
shews there was great expense attending that
trial, and as there was great expense, Mr.
SomerviUe would naturally be averse to any
unavailing delay, which must have been attend-
ed by additional expense.

At to the other cases, it has been remarked
by the prosecutor, that we say it was for the
interest of SomerviUe to go on with the trial,
although a conviction foUowed ; and then he
gave us a most facetious contrast, indeed, be-
tween this case and another, in which it was
not for the interest of the panel to state the
objection, because the libel was not well found-
ed, and the panel was acquitted. In this way,
says my learned friend, whether convicted or
acquitted, they find an interest not to state the
objection. I apprehend, such shifts as this
will never stand in your lordships' minds in
place of solid argument ; for, in the course of
a century, I think it is strange a panel should
not find it for his interest to wave such an
objection as this. Delay is generally incon-
venient, and an expense to him ; he has the
advantage of the tist of witnesses to be brought
against him being given in the indictment;
and he does not know what other witnesses
may be brought forward under a new indict-
ment ; and it is utterly impossible to account
for the desires and wishes of men in such cir-
cumstances. One thing is certain, that, in the
consideration and preparation in all cases past
and to come, it has oeen and frequently will
be the desire of the panel to go on without
stating a dilatory objection. I apprehend,
that in the present case you will not particu-
larly inquire into the motives of the panel for
stating the objection. He seems to be in a
dangerous state — ^whether you will find against
him or not, it is impossible to say ; but he is
in a dangerous situation, and I cannot be
called upon to explain the particular motives
for wishing for the delay ; and, therefore, I
submit to your lordships, without makina more
remarks upon the particular cases which have
been adverted to on both sides, that these
proofs which were pleaded on by the counsel
for the Crown are not such as should have the
least effect in regulating the law of the case,
more particularly as the proofs are against the
Crown. i

But, the principle of the law is still more
against them. Let us consider what is men-
tioned by Mr. Cranstonn, the proofs of single
judges refusing bills of suspension. A panel
was tried in an inferior Court, and subjected
to an ignominious punishment, of which he
wished to get quit altogether or have it miti-
gated. In numerous cases persons so accused
presented bills to this Court, and they were
refused by single judges, some of them the
first judges that ever appeared in this country.
Lord Braxfield was one of them, not to men-
tion other names. Is it possible to conceive a
case, where a man so convicted had not an
interest to dlqect to a single judge refusing his
bill ? It is impossible to dispute that the prac-

2591

57 GEORGE III.

Trial of WiUam Edgar

lam

ticewas a^inst the right principle, and the
interest was against the ptactke. Yet when
the point came to be tried, ^ou were of opin-
ion", that the pnttitice mtMtt yield to the princi-
ple of law, as it appeared to yoar lordships.

With regard to the prineiple of law, a few
observations — It occun to ne, m the first
{lAace, that no attempt can be more desperaie,
or more completely nnflronded, than the at-
tempt made by the Crown counsel to cohvince
yon that die public prosecutor has power to
abandon an Imlictment after a panel has pleads-
ed. It is directly in the teeth of thoie au*
thorities which we quoted to your lordships,
coming from that great master of the law to
whose dktayovLt lordships give great attention.
And how is that opposed ? They camiOt pre-
tend to say that we have misconstrued this
authority, which is positive and express, and
cannot be explained away. But they have
recourse to other dkia of Mr. Hume as b^g
inconsistent with this^ Upon lookiikg to these,
I have to express my astonishment Siey couM
have been stated as inconsistent. The princi-
pal of them, page 305, first vol. of Trtal Tot
UrimcF, and third vol. of the whole work, whete
Mr. Hume reasoning upon another pioitit al-
together, says, *^ But what shall be said when
the fact, which is related in the subsumption of
the libel, though short* of the crime charged in
the major propositioB, amounts, however, to a
lower crime of the same class; as in the case
of murder atid culpable homicide ; hamesucken
and assault; theft and swindling; notour and
simple adultery; ^and some others? In these
circumstances, and on finding that his stoTy
does not support him in his charge of thd higher
denomination of crime, may the prosecutor
nevertheless maintain his process, restricting
his charge to the lower species, and limiting
his conclusions as to punishment accordingly?
This is an important question ; and some di-
versity of opinion there has b^n among law-
yers about it. Some have thought diat there is
a violation of that decorum and propriety so
fit to be observed in all criminal proceedings,
if any ' one shall be tried on a libel (the
fundamental writ of the whole process) which
esfade, amd taken as it is laid before the Court,
is a disjointed, mis-shapen, and inconclusiTC
composition ; and tliat this consideration alone
is a good reason why no such accusation ought
to be sustained. But further, say they, to
shew the prosecutor any indulgence in this
article, is attended with a real hardship to the
panel, who prepares for his defence*again8t the
libel as laid ; and who knowing that he is secure
on the ground which is iaken there, will na*
tuially be less diligent or solicitous in providing
for his exculpation, in regard to any inferidr
degree of vguilt. One, for instance, who is
aecused of parricide, and who knows thbi the
person he killed 'vtas not Ills fiithev^ or who Is
accused of hamesucken, and knows thai die
aiaauH was not made on tbe comphnner at his
nome }• may naturally conchide thaltMsBlnnder
is «f itself aniikleBt to savf his lift; and will

put himself, therefore, to less trouble witth re-^
spect to those other pleas of self-defence, gross
provocation, and ^e like, which might serve
to exculpate him, or to alleviate his guilt. If
he were tried on an ordin^ charge of bieatihjg,
or of murder." Then he says, **'The prosecu-
tor, too, cannot well say that he suffers any
wrong in tfie enforcing of sucSi a rule ; sinee,
fbr o^inary, he has the means of being accu*
rately informed of the fact before raising his
libel; and if be have any doubt Of the pkoper
style of the crime, he may lay his chtog^ for it
under all the seversl denominations wh&cli may
eventually be found to suit the case. Nay,
there is still no hardship, though he discover
the weidcness of his case aft^t the execution
only of his indictment, siiiee at any period'
before remitting it to at) asance he may aban)loii
thi^ fkuUy libd, and raise another in more cor-
rect and better form.^ * Does Mr. Hume or not
cdnrecthis own errors, asf' they are suppoted
t6 be' in the other passage he had written, as
to the power of the prosecutor to abandon his
libel? lliere is not the l^t hint of it. Tlie
passage quoted by my client is that which must
be understood as limiting this general passa^as
to the power of the prosecutor.' That he may
abandon the libel there is no doubt, espedalqr
before the indictment is pleaded to; nay, a^et
it, in a particular manner, fhere can h4 no
doubt ; for he has only to move the Court, who
will do so, unless there be apparent injustice
in doing so. Mr. Hntne says, fit^t, he may
abandon, and, hi the second place, that he has
it not absolutely in his power— that if is thao-
curate in point of style to say that he does if
at ail — for that it is the Couri in cases whether
public or private. The Court couM keep him
to the libel if nropet; and ^ithc^forcb him to
desert linrplkUer, to the eflM of haying no
right to bnng a new trial, or hold him to the
libel already pleaded to. This is Mi'.'Hume^s
fair meaning. So much has been said' ujpon
this, that I niall not trouble you with any mdi^
remaiks upon the power of the prbs^utor iki
desert his libel. ' I may assume, be has 'no
power without the authority of th^ Coiirt '^He
nas just the same power as h man in other in-
stances to do what is lawfol, but only in sight
of the Court. Therefore any notice from hiin
that he was to do such a thing might be very
good notice that he was to move the Courts'
but could be nothing ftfrther. He bad powe^
to give notice of- that, and to do it ; but stiH
it- was only a notice of intention, and it i^ hot a
measure till the Court interpose for the pdi^.
pose. Ibis- is the sum and sul>stance 6f V^kt
can be extraifeted from Mr: Hume oik tike subj^^'
the authority to Ivhtch youbaVe been ' -
tomed to>efer in all cases. '

As to Mt. Bttriiret^ h^ either is n
perhaps corrects himself in another
and be would ^veadmitt^)umsejiC.4i^i
passase was to be understood tiihmpd^$9»A.
that the Court should consent.

Let us see where the rest of the aiEument

lies: AismiiiDg ihm thtfpablk

^•f f

^i^

Jot Adminisigring unlawful Oaths.

A. D, 1817.

[263

no power, without tbe act of the Court, to
•^•]|4jOQ the lihel to which the panel has
pjeaoed, U opous to me that a most ready way
<p this question is to consider the case of
Charteris; what was done in that case; and
what is to be infened from that case,

Jn the ease of Chaiteris four indictments
were raised; and my learned friends were
B^jiytf tp a^KTt (they are better acquainted
with these aocient tim^ than we)» that it was
il that time. a practice to raise matiy indict-
ments. Many of the practices of that period
*a9^ better honoured in Uie breach, thui tbe
obfienrancey and niany of Uiem are so by the
preeent Court. Notwithstanding this, it was
said to be the practice in those times to rais«
a whole .bunch of indictments at the same
ti^iie. This was done in the <»fa of colond
Charterisy who said he should not be obliged
to^ answer to the whole, fio, but answer to
t^/ope read in Cour(, and you may plead to
^kis lo^Mstment. You were told the question
was, whether the prosecutor could insist in
€nir. at the same time. I see no s«ch qaestioa.
t(i^. . On the oontraryi it is stated by Mr.
limmfi that some 9f these indictmenU were
^iQed for other diets. But, be this as it mayy
when Ghaneris wa^ told he had only to plead
to this ii»dictment, what did that force the
public jwQsecutor to do? Whether he was
altempting to carry on four at the same time,
or 'oDC» is of no consequence ; for the Court
ioioed the others to be abandoned. Why was
tbe pablic prosecutor obliged tQ give up these
indictments? upon what ground ? Way was.
ikot be allowed to go on with one^ suspending
mr the head of the panel all the others?
why did not he say, he wished this, and tiie
Covui allow itp—the Court saying, *• only an-
swer one. at a time, and no harm to suspend
the.ptheJs over your head : They are not called
Dpw, and may never be called : If you are
ai^qjvitted^.you cannot be tried again for the
same offence : They are for the same offence,
and therefore there is no^arm in having these
all againstyQu." The Court would not listen
to this. The proseihitor was obliged to give
up tbe indictn)ents,aiid thenCharteris pleaded-
iVtt is a ^ir state of the case. Now, rohy did
the Court ol£gp the prosecutor to give up the
indictments before tie pleading? Thai is a
h^ipa question ;; and no answer has been given
to it. The a^wer is given b^ Mr. Hume, and
a jomt aatisbctoiy answer it is, and he repeats
' itji^^ and again in different passages. The
r^lp^ was — oppressing the panel in the ma-
nagement i)f his defence. The Coprt ought
nj7 to allow that, and why? Because con-
tmry to the rules of justice, which are para-
mount to aH other rules in this CourL We
were told, that an act of parliament is of.
gi;ea|«r anthori^ than a law of practice of the
Cpurt. I apprehend a judgment of the
Court, proceeaing upon rules of justice, is
stranesr.thai^aoX other precedent. .1 am en-
title^ tp jassoaae, that tais was considered bv
the <Coart as tha jostica of any case m which

more than one libel would be hanging over a
man's head while pleading. Mr. Cransto^n
put a question, would it have be^ fcoi^peient
tor the prosecutor, after abandoning these, tq
have served them over again, or new p^es to
the same effect P If any public prosecutor had
dared to do such a thing, the Court would
have taught him his duty. If any public pro-
secutor had been daring enough so to tamper,
and attempt to evade the justice of the Courts
in a manner which would have been so grossly,
shameful (I am not intending to apply any
strong epithets to the proceeding before you :
I think It is a mistake, and a natural one, on
the part of my learned friends, to act as thepr
have done) : but in the case of Chaneri^, it
would have been considered a gross contempt
of the judgment of tbe Court. What has
been done in the present case ? It seems that
a public prosecutor cannot serve foqr libeU at
once, to the effect of bringing a, panel to, trial
upon one. Though he cannot do it, he can
do another thing. He has no occasion to serve
his libels for the same time ; but immediately
aiter tbe panel has pleaded to oney be may.
serve half a dozen for the same offence, beibre
that libel which has been pleaded to has been
^disppsed of by the Court.. It is ludicrous to
"maintain this. It is contrary to all reason
that could be applied to a thing of the kind.
If there is any legal principle in the case of
Charteris, this is impossible.
I apprehend the question lies here. If the

f>roaecotor was not entitle4 tp serve a new
ibel, then the new libel was not /lerved, .for
there is one great law of justice as of eqiiity.
** Id tantum pot$umiu quod dfi jure pofiuutrnJ*
If the public prosecutor had no right to serve
that libel, then you will consider that the libel
was not served) and that is my reason for. in*
sisting at your lordships' bar, thjat the. panel
cannot be obliged to plead to that libel. The
former libel has not been deserted to this mo-
ment; you have not yet consented to it. I
am not going to Hy anv thing so insincere as
that you will be called upon to refuse vour
consent, when proposed on the motion of the
public prosecutor. But the public prosecutor
has taken a high sution here. He refuses to
move your lordships to desert the diet ; and
therefore you have never had an opportunity
of considering the point, whether it should be
deserted or not. If the diet had been de-
serted this day, before we began to state this
point to your lordships, there is another ground
sufficient for us which would have arisen. I
shall not plead any thing without an interest.
I jam entitled to tell them, the libel would in
thiat case have been considered as served this
day, that I m^y have time to prepare my de-
fences. I shall not enlarge upon the hardship
which might arise to the panel, from being
obliged now to answer to this libel. It is
sufficient for me, that the practice which has
been followed here is contrary to the esta-
blished practice before your lordships, and the
best prosecutors have uniformly deserted libels

263]

£7 GEOUGE 111.

Trial of IViUiam Edgar

Ca64

before serving second iDdictments. There
may be hardship in this case, and thei% might
be greater in others. As to the case which
was stated by Mr. Cranstoun, of two libels
depending at the same time^ and one of them
where the panel was to be tried in Edinburgh,
and another at Aberdeen, that proceeding
would be so harsh and unjust, that even
leaving mattera to the discretion of your lord-
ships (which every sound rule of jurispru-
dence is against, for the Court should have no
discretion as to such matters), you would in-
terpose a remedy for the eviL But the rule
6f law is not more against such a proceeding
tlian against the present. I should have no
apprehension of the consequence in that case ;
for, till a total desertion of law and justice in
the country, such a thing could bot be admitted.
But, is it no hardship to be perplexed with
two libels at the same rime } The question of
relevancy is attended with the greatest nicety
and difiiciilty, and has given counsel a great
deal of trouble alteady— and is there no hard-
.ihip in having to give as much consideration
to a new libel? That former libel was at*
tended with so much difficulty, and occupied
so much of the attention of the panel's coun-
sel, that there is no saying what pleas might
have arisen to them under that libel, and pre-
^nted them fi^om paying attention to the new
libel. What if the connsel in the former case
Imd not thought it incumbent on them to
support the panel in the present ? What if
he had been deserted by his agents? I do
>tioi suppose there is any chance of that in this
case ; but this signifies nothing at all to a ge-
neral rule, to which your lordships should
adhere in all caaes. There have been cases in
which a man has beeti defended by counsel
and agent in one indictment, who did not
think it incumbent npon them to defend him
in another. It wIa said, that the panel had
notice a considerable time ago tliat the libel
was to be abandoned. That Hvas an accom-
modation. But what if the public prosecutor
had given no such notice ? It was not incum-
bent on him to give any notice. And as the
panel would have been brought to this bar,
with his counsel and agents ready to defend
him in the former case, after bestowing great
attention upon it, but not prepared to defend
him in this case ; is not that a situation which
your lordships would take into consideration,
if any thing depends npon the possible bard-
ship? The counsel and agents might hive
been brought to your lordships' bar, under the
impression that the trial was to go on on the
first indictment. When they come, ready to
defend him, they are told that that case is
not to be tried. The prosecutor prays the
Court to desert the diet pro loco el tempore^ and
then proceeds npon a new indictment, of whidi
the counsel and agents bad no notice what-
ever. Having held this out against him, he
finds the whole trouble, research, time, and
expense of previous preparation, thrown away,
and that he must be ready, upon the most

summary warning, to proceed to trial on ano-
ther indictment.

I may be told, such a case can hardly hap*
pen, in which the panel can be deprired (yf
the whole mdueUs ; but, if be may be deprived of
even a part of the indueia, he may therebv
lose the assistance of his agent ana counsel,
and what is more, may be deprived of the
most material witnesses.

We are told, that, in this indictment, there
is only an alteration in a few words of the
former. There is the very greatest difierence
between the two indictments; which is most,
difficult to defend, it is not for me to say.
The major proposition is the same in both;
but the minor is essentially different ; and the
two require different sorts of arguments.

Lord Hemumd. — ^This objection, not veiy
material at first, has now as to the panel's In-
terest dwindled into nothing. For as it is not
pleaded that the second indictment is null, so
as soon as fifteen days elapse from the aban-
donment by the prosecutor, he can be brolkg|ht
to trial. But it is argued there is a distinc-
tion where the panel has pleaded, t. e. uttered
the words '' not guilty,^ for that, it is said,con-
stitates litiscontestation. I doubt, if that be
a phrase in criminal law. It does not occur
in any one authority. But if it be, it mnst be
understood as in cwU^m$. • Litiscontestation,
however, is not constituted by defences nor
by pleading, it never takes effect till an aqt be
extracted ; not an act and commission of mo-
dem introduction, but an act far proof before
the Court, or before the Ordinaries on oath*
and witnesses.

On this analogy the powers of the prosecu*
tor continue till a jury be im);)anelled, and so
was found in the case of Archibald, 1708.
On this ground I cannot agree to strike out of
the list of cases, those in which ^^ not guilty "^
has not been pleaded. On the other hand, tM
panel's argument cannot be redargued on
what is called list of cases beyond the period
of search. Additional cases are given in for
the panel, in all of which the diet had been
expressly deserted; but precedents enough
remain to settle the law.

In 1st case, Lawson. — Diet deserted.

In 2nd case, fiums.~No desertion, and trial
proceeded on second indictment.

In 3rd case. Berry. — Same procedure.

5. Mendham. — Argument that panel had no
interest to object;— not understood.

7. Lindsay Crawfiird. — A serious case, yet
wi^ut desertion ; trial proceeded on second
indictment. It is argued, that in none of tbese
cases was the objection pleaded. Why ? be*
cause it was tiot thought relevant : The whole
bar has been in a dream, till the ingenuity of
the counsel here discovered what had been hid
from their predecessors, though with all de^
ference to them not their inferiors in ability i
and the same observation equally applies to
the Court.

Is not this fiufficicnt to establish a point of
fonn? In one case, hovrever, the objeoiion

2651

y&r AdmutitttritiguHittti^l Oalhi.

A. D. 1817.

(906

was broogbt into Yiew by myself, Ballantine
against Somenrille. My notes correspond with
Mr. Drammond's. An objection by a judge is
as strong as that by a counsel.

In 10th case, Horn.— No desertion, and trial
proceeded on second indictment. That second
indictment is competent, inveterate usage
proves.

Lord Giiiies, — This objection came unex-
pectedly, and we gave our opinions imme-
diately after it was stated. It happens that
the opinion which I then delivered is that which
I have formed Sifter all I have since heard of
the case. The opinion I gave was, that the
fiist indictment was not abandoned by the
service of the second. I understood the plea
stated on the part of the public prdsecutor to
be, that by serving a second indictment the
first vras abandoned, and that there was there-
fire no occasion for deserting the diet. I think
this doctrine erroneous. I think the first in-
dictment did not fall by the execution of the
second ; and the consequence is, that as there
are two indictments subsisting against the panel
at the same time, one of them must be dis-
posed of before the other is proceeded in. The
service of the second indictment does not ap-
pear to me to be null, but the prisoner must be
entitled to such delay as your lordships may
think reasonable, to prepare for his trial upon
it.

I conceive it to be certain that the Court
would think it a piece of great injustice, if the
public prosecutor, after serving a second indict-
ment, sbonld insist on proceeding with the first ;
but I know no principle or practice which en-
titles me to say he cannot do this. But whether
he would be entitled to go on with the first or
not, the prisoner may be entitled to insist that
he should go on with it. What is the answer
made to this? A broad assertion that the
pablic proseciifbr has entirely the control over
his own instance, — that he may abandon it
whenever be pleases, — and that we cannot in-
sist that it shall be prolonged a single moment
after he pleases. He has certainly a control
over his instance, — he may pass from his first
indictment, — but what is the consequence?
The Court pronounces an interlocutor deserting
the diet, and in such terms as they think proper.
If he passes firom it for no reason, or for bad
reasons, your lordships may desert the diet
un^pUciUTn You have the same power of
checking him as any private prosecutor.

The assertion, that ^ his majesty's advocate
possesses an uncontrolled power over his in-
stance in all stages of a criminal process,'' if it
is to be taken literally, is directly in opposition
to the doctrine laid down in the case of
Archibald in 1768 ; but if it merely means that
he possesses a power over his instance, subject
only to the control of the Court, then it means
nothing but what I have already said, that al-
tbough the public prosecutor may withdraw his
instance, yet the effect of his doins so is, that
tile Court is called upon to desert ue diet, but

in such terms as they think proper,— ^ro hoQ
et tempore^ with right to him to insist again ;
or if the prisoner ^ews that he acts impro-
perly, then your lordships can desert it sim-
plicUer.

I must say generally, that I am not in any
case for introducing novelty in points of prac-
tice, or doing any thing inconsistent wim es-
tablished law, by which a panel may be pre-
judiced, or which has a tendency to increase
the power of the public prosecutor. His poweit
in this country are far greater than in the neigh-
bouring kingdom — greater perhaps than in any
other country, I do not say that they am
greater than they ought to be. But as Uiey are
so great they should be watched by us. Viewing
the matter in this light, I think it proper to
state, that the prosecutor having raised a se-
cond indictment, the Court may, upoh his mo-
tion, desert the diet pro loco et tempore. It
remains for the prisoner to shew, if he can,
that the second indictment has been raised and
the first abandoned for unjustifiable purposes ;
and if he can make out this, your loniships will
desert the diet umpliaier,

I state these matters with reference to general
principle, and not to any tiling which has oo»
currea. For there is no plea here of actual
hardship, and the panel cannot be exposed
to any injury whatever from what has taken
place.

The only point upon which I gav^ no positive
opinion formerly is now one of the pleas of the^
panel, that the service of the second indictment
IS null in consequence of the first indictment
not having been deseited. I said formerly I
did not think so, and I remain of that opinion.
That opinion is formed upon considering the
precedents mentioned in the additional mi-,
nutes.

With reference to the practice, I need add
nothing to what has been said. As to the case
of Somerville, we are informed that the diffi-
culty was started ; and what was the conse-
quence ? The objection on being argued was
overruled. In that case, after an indictment
had been raised, executed and pleaded to, the
Court, without deserting, proceeded to the trial
on the second. I had the honour to sit as a
judge upon that trial, and I think we were
wrong. I think it was the duty of the Court
to have disposed of the first indictment by in-
terlocutor oefore proceeding to trial on the-
second ; and, in not doing so, our proceedings
appear to me to have been erroneous. The
proceeding in the case of Hamilton, in which
Duncan Forbes " consents to the deserting of
the diet without prejudice to him to insist in
the new indictment,** appears to be more correct
than that in Somerville's case. '^ The lord
justice clerk, &c. in respect of the above con-
sent, desert the diet upon this indictment,
witliout prejudice to the pursuer to insist upon
the new indictment as accords.*' That is the
principle upon which I proceed^ and that is the
precedent whiich ought to be followed. For I
cannot subscribe to the doctrine, that a libel,

1M9] 57 CllBORGB UL

diiMA ill' sn^y citetitnMkixces' iti ^di tcfruft ai
^M Md- addhroeate chooses to dietatISi

All-UiM refmaHis Us the qoesihm/'vvftkt'del^ir
shall be given to the prisoner ? At present 1
|M ttbt^nSbii on tihat!;

JkM PiMfl^-^I faaV^ nb reason tbtfaint;
«M«^ fiom th^ aniietf dbplayed by th6
jirtKmefer-coimscft in aiguing th^ point, that
Iftife cpi^stion* rt isftn^ is of anr importance t6
tb^pAltem^i but it is of importance to the la"*^
iM to tb« 'pnoctice of this Contt ; and I trust,
thity aft^r having heard and^read so miich on
tfi6 subject, we shall be able to pronounce an
itfttitocutor which' will' set this matter on a
|MMr fdoting^ in tiriie to come:

Tne atgumeeft so abty stated by Mr. Crans-
CMI is iMTW reduced int6 writings and stands
ufMn'thb record 'of the' Court ; smd it appears
16 vie. that in the radical point there is a ma-
tiriitliefMt on that "side of the bar. It is said
m Ae ininute for Ihe prisoner, that it is Incdm-

Kti6nt<t6 serve ofUiglibet'wfiile another, by
ving been pleaded to, is stiS current agdnst
•rpaneh Thn is the first und iadical question.
Wte utast first 'consider whether a second libeV
Cttkf fi^ served while a former is ii) dependence,
9Bad alleir this panel has pleaded guilty or not

grilty to fit. Now, upon this poit^t I maintain'
at there is no auUiority in the text-books, or
itt the'plrecedetifs of this Court, for the propo-
8itf6n'Udvaficed by Mr. Cranstoun.

A^diiltitlldtioii has iiid^ed been tdken between
di^cAseof aprisitynet'lulvxng pleaded to. the'
fifst'iildictmeut^ and his not bavng as yet been
oHUM U)^ to-ple^ ; and4t is* true that many '
of th^ decided cases which have been noticeo,
reftr only tb'the c^uie of the panel not having*
pleaded. T^e case of I^wson in 1785 — of
Bttms' aita'Veitch in it^— of Betiy and
Bbb^rtMi^'aiid CaUendar in 1793^-of iScott in
1794^-^ Lindsay Crawfurd and Bradley in
18ft ; tlie older c^ues of Nfcolson in 1711, and
In|^lisin'l7!20,iWtBre all of thenr cases in which
tUejMUt^l had not pleaded to the indictment;
aUdj in such cases-, it is admitted by the priso-
ners^ cotkisel in the Argument which we have
htofd. that a se^onld indictment may be
•A*vea.'

Bttt'ImUst-VentilTe to dt4te that there is in
pribcipleno room for the tltstinction between
the tase of- a prisoner having pleaded, and his
nbtlnlving plet^ded to th^ indictment, in so far
a^^oocehis the right of the public prosecutor -
Uf sertea eecond indictment upon him. If
tlkttf Was room for this distinction, the diet '
eiMildltever1>e deltert^ after the ))riAoner had
pleads to theindictm^tit, and' an tnteiiotutor
onr the rele vancnr had 1)een pronoubced ;' — the
prtMiler wdoM haVe a jur qudaxtmn in the pro-
ceeding8--^he Would be Entitled to say that the
CduH bas no ^wet to desert the diet. This
pdhit 'Was most aUy -argued in ' the case of '
AjChibfldd; in iTdV whibh is reported in
Irlitoirin^ 'caM; Th^rie wai mucH learning
4ii^^ititMiargQtt(eaft; aiid ^i&irepon of

TrM qfWUUtM Sctgaf

C3I68

tUcf cstke has ali^isted me iii forming my opinion
oil the question now before us. it was con-
tended in the case of Archibald, that the panel
having pleaded to thie indictment, and an in*
terlo^utof of relevancy having been pronounced,
the diet could not be deserted. But, in the
face of this plea, it was found by the Court
that the public prosecutor had a right to c^
upon the Court to desert the diet, and they did
desert aticordinglv.

llie truth is, tii^t it is incorrect to speak of
joining issue or' of litiscontestation in criminal
matters ; the reason is, that there is no room
for' the contract upo£ wbich, in civil causes,
litiscontestation proceeds. The diel may be
deserted at any stage of the procedure until the
assise is 9et, "We have now^'' (says Mr. Hume,
wben treating of this subject, vol.' ii. p. 86.)
" advanced to that period of a criminal process,
when it assumes a new shape, and is in several
respects lAaterially alteredjin its nature by the
naming and swearing, or, as we call it, tetting
of the a^ize of fifteen persons, who are to pass
on the trial of the prisokier. In particular, thai
step is attended with this change in the con-
dition of the process,' that, the prosecutor no
longer has it m his power for any reason to
obtain a desertion of the diet, but must let his
interest take its fkte with the libel. Until then,
and even afte^ interlocutor of relevancy, the
prosecutor, on good cause shewn for it, may
still be allowed to desert the instance pro loco
et tempore^ and save his right of insisting anew,
at a more convenient time and on another. in*
dictment," &c.

Accordingly, webave a number of authorities
for the proposition that the public prosecutor
may, before the assize is set, desert the diet,
and serve a second indictment on the panel.
We have thewbote cases of Hamilton in 1714,
of Femie in 1720; the case of Mendham iu
1804, of Somerville in 1813; of .Horn in 1813*
and of Bell and Douglas in 1817. There are
these six cases at different periods in the
practice of this Coort, in whi<:h a second
indictment has been served before the first was
disposed of. It has been suggested, that
the Court proceeded incautiously in allow-
ing the second trial to proceed before the first
indictment was disposed of. I shall speak to
that point afterwards. At present I am con-
sidering whether the second indictment was
regularly served ; and the cases now referred
to are invincible authorities to show that a se-
cond i

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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time"

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